NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RUVOLO, P. J.
A jury convicted appellant of first degree murder (Pen. Code, § 187, subd. (a)); second degree robbery (Pen. Code, § 211); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); and two counts of grand theft (Pen. Code § 484e, subd. (d)). The trial court found that appellant suffered nine prior strike convictions and five prior prison terms, and imposed an aggregate term of 131 years to life in prison.
Appellant contends the trial court committed reversible errors by (1) admitting evidence of uncharged acts of domestic abuse and murder committed against other victims; (2) admitting evidence of the victim's statements about appellant; and (3) failing to instruct the jury regarding theft as a lesser included offense of robbery. We reject these contentions and affirm the judgment.
II. FACTUAL BACKGROUND
A. Appellant's Relationship with the Victim, Sandra Coke
In 1993, Sandra Coke was a criminal defense investigator for the California Appellate Project, working on the case of death row inmate David Mason. Coke was assigned the task of locating and interviewing appellant about his friendship with Mason. Coke found appellant in Santa Rita Jail and obtained an affidavit from him. She subsequently told her boss that appellant was charismatic, good looking and smart. According to appellant, Coke was receptive to his advances and a romantic relationship quickly ensued.
For most of the time that appellant and Coke knew each other, appellant was either in jail or prison. Although Coke told some friends and family she was involved with a man named Randy, she did not tell them about his criminal history or that he was in prison. Appellant was the father of Coke's daughter, Jane Doe, who was born in 1998. Coke raised Jane Doe by herself, telling people that the father was out of the picture or that he lived out of state. Coke confided to one friend that Jane Doe's father was not involved in their life because he was a bad guy with a criminal history.
In June 2012, appellant completed a lengthy prison sentence and was released on parole. He moved to Oakland, lived in a motel and secured a job at Caltrans through a prison work program. Because of a prior rape conviction, appellant was required to wear a GPS ankle device and excluded from living in specified areas. In January 2013, appellant became transient, which meant he could not spend more than six hours a day at one location unless he registered for residential status.
In January 2013, Coke and her daughter were also living in Oakland. When Coke learned that appellant was out of custody, she offered her assistance and the two began spending time together. Coke continued to keep appellant's criminal history a secret, but told Jane Doe that he was her father and told friends that he had recently returned to the area. Jane Doe was not comfortable around appellant, but Coke often allowed him to spend time at their house and to keep his clothes in a spare room. Coke also provided appellant with financial support and let him borrow her car.
By spring 2013, Coke was confiding in friends about problems she was having with appellant. For example, he took her car without permission and kept it overnight. He also stole items from her home, including a camera, her daughter's headphones, and two bicycles. Coke began to create a record of appellant's misconduct. On April 26, 2013, she filed a police report that her car had been stolen, and she suspected appellant had taken it without her permission. Later that day, she reported that the car was returned. In May, Coke filed disputes with her bank about checks that appellant had forged and cashed against her account.
B. Appellant's Arrest for Violating Parole
On May 9, 2013, appellant was arrested after Coke filed a complaint with his parole officer. Coke's written statement, which was admitted into evidence at appellant's trial, described the following incident: On May 8, Coke reluctantly agreed that appellant could sleep in her house while she and her daughter were out for the day. Initially, Coke told appellant he could only use the garage because he was taking drugs again and pawning things to support his habit. However, appellant convinced Coke that he was not that desperate and that if she trusted him in the garage she should also trust him in the house. When Coke arrived home that evening she realized that she forgot to unlock the deadbolt, which meant appellant was locked out of the house. Then she discovered that her dog, Ginny, and two bicycles were missing. Appellant did not respond to frantic calls and texts from Coke until early the next morning, when he sent her the following text message: "Question of the day. Is a dog worth $1,000?" Coke paid appellant $1,000, but he did not return Ginny, making a "litany of excuses" as to why he could not do so.
While Coke wrote her May 9 statement, appellant's parole officer used the GPS monitor to locate appellant at an Oakland motel where he was arrested after attempting to flee. Appellant was sentenced to 150 days for parole violations and ordered to serve 75 days in custody. The day after his July 23 release, appellant attempted to falsify a drug test and spent another several days in jail.
Meanwhile, Coke's desperation to find Ginny became an obsession. Between May and August 2013, Coke visited appellant in jail at least seven times and spoke to him on the telephone at least 70 times. During conversations that were recorded by the jail, Coke pleaded with appellant to tell her what he had done with Ginny, and threatened to cooperate with the police unless he did. Appellant expressed anger and hatred toward Coke for putting him back in jail, suggesting at one point that he should blow the dog's brains out in front of her, but he also played on her sympathies and gave her false leads about how Ginny might be found.
While appellant was in jail, Coke told friends she was going to end her relationship with appellant, but she needed to stay in contact with him until she got her dog back. Dianna Oglethorpe, a work friend from the federal public defender's office, testified that when Coke talked to her about appellant in July 2013, she was always visibly upset and frightened. She knew she needed to end her relationship with appellant, but was not sure how to do it. In the summer of 2013, Coke told her good friend Wendy Springer that after appellant was released from jail, she wanted to pick him up and look for Ginny one last time and then "the relationship would be over." Springer recalled that Coke was so angry, frustrated, and sad that she no longer had any love for appellant. But, she wanted to maintain contact so that when appellant got out of jail she could pick him up and he would take her to Ginny.
During this time, appellant continued to give Coke false hope that Ginny could be found in order to dissuade her from cooperating with law enforcement. Appellant discussed this strategy with his best friend Keven Qualls during his telephone calls from jail. As appellant told Qualls, "that dog ain't to be found." Appellant also discussed the matter with a fellow inmate at the jail, Sean Zukowsky. Appellant told Zukowsky that he killed Ginny because the dog was Coke's "pride and joy." Appellant also confided that he was "playing the bitch" for money, and if Coke was not part of his "program," he would "place hands on her." Appellant also told Zukowsky that it disgusted him to even look at Coke after she sent him to jail; that an ex-wife or girlfriend had done that to him in the past; and that he would never be with a woman who called the cops on him.
Throughout the summer, appellant's parole officer made "countless" requests that Coke report the bike thefts and the theft of $1,000 to the Oakland police. Initially, Coke said she would, but by the end of the summer she was only interested in getting her dog back.
On August 1, 2013, appellant was released from custody. He was required to wear an ankle GPS monitor, and ordered not to contact Coke. But he went to Coke's house the following day, which was Coke's birthday. The day after that, Coke paid for appellant's hotel room.
C. Coke's Disappearance and Murder
On the morning of August 4, 2013, Coke went to church. Around 5:00 p.m. that afternoon, she had an early dinner with a man she had started dating. After she returned home, between 8:00 and 8:30 p.m. that night, Coke had two phone conversations with appellant. Then Coke told Jane Doe that she was going out with appellant to look for Ginny and would return in 20 minutes. At 10:12 p.m., Jane Doe received a call from the cell phone Coke used for work. A female stranger said she found the phone in the middle of a street in Emeryville. After several calls to her mother's personal cell phone went unanswered, Jane Doe called 911, all the while using her "Find My iPhone app" to watch the phone travel east then north toward Vacaville.
On August 5, 2013, police found Coke's phone on an off-ramp of the I-80 freeway. On August 9, they found Coke's body in a dry creek bed in Vacaville. She was wearing the same clothes she had been wearing when she left home the night of August 4, although her shoes were missing. Her cause of death was asphyxia due to strangulation.
D. Police Investigation of Appellant's Activities
Using data from appellant's GPS monitor, police traced appellant's steps on the evening of August 4, 2013. From 8:28 until 8:42 p.m., appellant traveled to various locations in Oakland at a speed consistent with being in a car. At 8:42 p.m., appellant was at a motel known as a place to buy and use drugs. He left that location around 40 minutes later, again at a speed consistent with being in a car. At 9:23 p.m., appellant's monitor stopped transmitting data, and he went "off the grid."
Investigators used Coke's bank records, surveillance video from street cameras, and witness statements to piece together some of appellant's activities on August 5, 2013. Shortly after midnight, appellant drove Coke's car to a convenience store where he used Coke's bank card to withdraw $400 from an ATM machine. Then he went to a "trap house" in Oakland where he picked up Deanna Smith. Appellant and Smith drove Coke's car to a Motel 6. At 3:12 a.m., they checked into a room where they smoked "a lot" of crack and had oral sex. At around 7:00 a.m., they drove Coke's car to a Chevron station where appellant made two failed attempts to use an ATM machine to withdraw money from Coke's bank account.
At around 9:30 a.m. on the morning of August 5, appellant parked Coke's car in the parking lot of an Oakland Housing Authority apartment complex, then walked to a stairwell where he sat down. A maintenance worker concerned by appellant's demeanor contacted dispatch, but appellant was gone by the time an officer arrived. When police searched Coke's car, they found her shoes under the brake and gas petals. Coke's purse, FasTrak transponder and ID were in the car, along with Ginny's green blanket. Coke's wallet was never found.
On the afternoon of August 5, 2013, appellant had a telephone conversation with his nephew, Angelo Gross. Appellant asked for money and a gun, telling Gross he was not going back to jail. When Gross asked about Coke, appellant said something like "Don't start acting square on me now. You know how I get down. She's probably where her dog is at." Gross contacted police and assisted them in luring appellant to a meeting location where he was arrested.
E. Appellant's Trial Testimony
At trial, appellant denied that he killed Coke. He admitted that he stole checks from her and cashed them when he needed money. He also admitted taking or stealing the bicycles and headphones, and that he did not always return Coke's car on time when she let him borrow it. However, appellant claimed that he had permission to use Coke's debit card to get cash. Appellant also testified that he did not steal Coke's dog. According to appellant, Ginny got out when he opened the gate. Appellant claimed that he subsequently tried to find the dog and that he also attempted to return Coke's $1,000, but she refused to take it back.
Appellant testified that on the morning of August 4, 2013, he and appellant went to church together and then searched for Ginny at dog kennels and animal shelters. Appellant was aware that Coke had a date that afternoon, claiming that he was not concerned about it because she was just trying to make him appreciate her more, and that he made her feel good by pretending he was going to show up and "punch her date in the face."
Appellant testified that he and Coke got together on the evening of August 4, 2013, because he needed to get some things from Coke's car and she wanted to help him find a place to stay that night. While they were together, Coke began to follow the car of someone who she believed had information about her dog. Eventually, they ended up at a trap house in Richmond where appellant got high while Coke was questioning people outside. When he rejoined her, Coke asked him to take her car and debit card and go get cash at an ATM while she stayed and continued to talk with people who appeared to have information about Ginny. That was the last time appellant saw Coke; when he returned with the money, Coke was gone. Appellant was not worried about her though because she was courageous and she was on "her mission." So he went back into the trap house and took more drugs, intending to "disappear" for a while, as he had done "many times" before.
F. Appellant's Prior Similar Crimes
At appellant's trial, the prosecution presented evidence of three incidents from appellant's past in which he allegedly engaged in conduct similar to the charged offenses.
The first incident was the August 13, 1983 murder of Marilyn Piggott. Joel Morgan, a childhood friend of appellant, testified that on the morning of August 13, he rented a motel room for appellant because appellant did not have identification. Appellant had a bag full of money and drugs, and over the next few days the two spent time together taking drugs and having sex with a prostitute. At one point when they were alone in the hotel room, appellant told Morgan that he murdered a woman in North Oakland because she fired him. Appellant said he had been working as a doorman or bodyguard for the women, who was a drug dealer. He also told Morgan that he stole money and drugs from the victim. Weeks later, appellant asked Morgan to give him an alibi for the time of the Piggott murder. When Morgan refused, appellant threatened him.
Piggott's best friend Rayma Smith also testified at appellant's trial in this case. Smith lived down the hall from the apartment where Piggott was found face down on her bed with a hammer in her head. Smith testified that shortly before Piggott was murdered she confided to Smith that she was afraid of appellant, but that she was also angry at him because he had stolen money from her. On the day of the murder, Smith was on her way out to the store when she saw Piggott and appellant in a heated argument. Piggott was accusing appellant of stealing and appellant was telling her to be "cool" in a threatening manner. Smith stayed around until she felt her friend was safe, but when she returned from the store several hours later another neighbor told her that Piggott was dead.
The jury heard other details about appellant's involvement in the crime including the fact that when he was arrested police found Piggott's jewelry in his car. The jury was also told that appellant was tried twice for Piggott's murder and ultimately acquitted in 1986.
The second incident involved appellant's ex-wife, Vickie R. Vickie R. testified that, at some time prior to June 25, 1983, she ended her relationship with appellant and took his house keys. On the evening of June 25, Vickie R. was lying on her sofa when she heard banging on the door and the next thing she knew appellant had broken down her door. He started punching her in the face with a closed fist, then dragged her up the stairs and tried to strangle her with his hands. She managed to get away and ran into the street where she flagged down a cab driver who helped her contact the police. A few months later, Vickie R. arrived home early in the morning and found that her porch light had been turned off. She called the police for a security check. Officers found appellant inside the house and arrested him for Piggott's murder, which had occurred a few weeks earlier.
Finally, the jury heard about a 1993 incident involving Michelle S. Michelle S. testified that she and appellant had a dating relationship that included getting high and having sex in his motel room. One night in October, appellant asked her to go someplace with him, but she refused because she was with a friend. Appellant slapped her, chased after her when she tried to run away, and pushed her into a car driven by his friend. Appellant wanted money from Michelle S., but she did not have any. She offered to prostitute herself so she could make money for appellant. When appellant agreed, she was able to flag down someone who drove her home. Appellant was arrested for battery and kidnapping. But, after appellant spoke with Michelle S., she refused to cooperate with police and the charges were dropped.
A. Admission of Evidence of Appellant's Past Crimes and Bad Acts
The trial court admitted evidence of the Vickie R. and Michelle S. incidents under Evidence Code section 1109
1. Legal Principles and Standard of Review
Section 1101 establishes the general rules governing the admissibility of evidence of a defendant's uncharged misconduct. Under this provision, "[e]vidence of defendant's commission of other crimes, civil wrongs or bad acts is not admissible to show bad character or predisposition to criminality, but may be admitted to prove some material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. [Citations.] Because evidence of a defendant's commission of other crimes, wrongs, or bad acts `"may be highly inflammatory, its admissibility should be scrutinized with great care."' [Citation.]" (People v. Cage (2015) 62 Cal.4th 256, 273 (Cage).) "Specifically, the uncharged act must be relevant to prove a fact at issue (Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (People v. Leon (2015) 61 Cal.4th 569, 597-598 (Leon).)
Section 1109 creates exceptions to the general rule against admitting propensity evidence for specific types of uncharged misconduct, including acts of domestic violence. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Section 1109, subdivision (a)(1) states in pertinent part: "Except as provided in subdivision (e) . . ., in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Section 1109, subdivision (e) further provides: "Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."
"By its incorporation of section 352, section 1109, subdivision (a)(1) makes evidence of past domestic violence inadmissible only if the court determines that its probative value is `substantially outweighed' by its prejudicial impact." (People v. Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson).) However, "while evidence of past domestic violence is presumptively admissible under subdivision (a)(1), subdivision (e) establishes the opposite presumption with respect to acts more than 10 years past." (Johnson, at p. 537.) Nevertheless, subdivision (e) "clearly anticipates that some remote prior incidents will be deemed admissible and vests the courts with substantial discretion in setting an `interest of justice' standard." (Id. at p. 539.) Regardless when the incident occurred, the trial court ruling should be based on a balancing of factors under section 352. (Johnson, at pp. 539-540.)
Trial court rulings under section 1101 and section 1109 are reviewed for abuse of discretion. (Cage, supra, 62 Cal.4th at p. 274; Johnson, supra, 185 Cal.App.4th at p. 539.)
2. Evidence Admitted Under Section 1109
The prosecution filed an in limine motion to introduce evidence of five uncharged acts of domestic violence under section 1109: (1) the 1983 assault of Vickie R.; (2) the 1983 murder of Marilyn Piggott; (3) the 1993 assault and kidnapping of Michelle S.; (4) the 2013 killing of Coke's dog, Ginny; and (5) the 2013 assault of a prostitute named S.B. The trial court found that the incidents involving Vickie R. and Michelle S. were admissible under section 1109, and that the killing of Ginny was also an act of domestic violence, admissible under section 1109. But the court concluded that there was insufficient evidence that the Piggott murder or S.B. assault involved domestic violence. In this court, appellant implicitly concedes that killing of Ginny was an act of domestic violence. But he contends that the trial court committed reversible errors by admitting evidence of the Vickie R. and Michelle S. incidents under section 1109.
a. The trial court rulings
The challenged rulings were made at a pretrial hearing. Addressing the Vickie R. incident first, the court began by considering whether the passage of time impacted the probative value of this 1983 act of domestic violence. (§ 1109, subd. (e).) The court observed that when a defendant has made a life change or has had the opportunity to commit domestic violence for a substantial period of time but has not done so, it would be unfairly prejudicial to "dredge up something from the past and make it admissible in the current trial." However, no such concern arose in this case because appellant had been "incarcerated for all but four years of the 30 years since [the Vickie R. assault] occurred," and thus, he did not have "the opportunity to have access to people on which to commit acts of domestic violence." The trial court also considered other factors under section 352, concluding that the Vickie R. incident was not inflammatory when compared to the charged crimes and would not consume undue time or cause confusion. Ultimately, the court found that the interest of justice would be served by admitting this evidence, and ruled that the evidence would be admitted under section 1109.
After hearing argument about the 1993 Michelle S. assault, the trial court reached essentially the same conclusions as it did with respect to the Vickie R. incident. Finding there were sufficient similarities between appellant's prior acts of domestic violence and the conduct at issue in the present case, the court observed that when appellant was out of custody and women were available to him, his tendency was to engage in acts of domestic violence.
The record shows that the trial court properly exercised its discretion under section 1109. It considered the relevant factors, and reasonably concluded these two prior acts of domestic violence were more probative than prejudicial, and that the interest of justice would be served by admitting this evidence. Arguing otherwise, appellant contends the trial court failed to balance correctly the section 352 factors because his prior acts are dissimilar to the charged crimes, remote, and unduly prejudicial. We disagree with each of these contentions.
First, the record shows that both prior acts involved some similarities to the present case. Vickie R. was violently attacked and strangled by appellant after she ended their domestic relationship and locked him out of the house. Similarly, Coke was strangled to death after she locked appellant out of her home and took other steps against him that were consistent with ending their domestic relationship. Michelle S. was assaulted and kidnapped by appellant after she refused to comply with his demands. Similarly, after appellant killed Ginny to punish Coke for crossing him, Coke went somewhere in a car with him and was never seen alive again. Furthermore, appellant convinced both Michelle S. and Coke that they should not cooperate with law enforcement.
Second, the trial court explained why these prior acts of domestic violence were not remote under the circumstances of this case. Appellant was incarcerated for most of the 30-year period prior to Coke's murder, and when he was not in custody his tendency was to abuse his domestic partner. (See People v. Daniels (2009) 176 Cal.App.4th 304, 317 [rape committed 15 years before charged offense not remote "because defendant had been incarcerated for the vast majority of that period"].) Appellant gives no good reason for disputing the trial court's analysis of this issue.
Third, appellant's theory of prejudice is not substantiated. He suggests that the jury may have been tempted to "condemn" him not because they believed him guilty of the charged offenses, but rather because he escaped unpunished from the prior offenses. (Citing People v. Thompson (1980) 27 Cal.3d 303, 314, disapproved on another ground in People v. Scott (2011) 52 Cal.4th 452, 470-471.) But there was overwhelming evidence that appellant was a career criminal who was incarcerated for most of the time that he knew Coke, and thus was not a person who escaped punishment. Furthermore, the Vickie R. and Michelle S. assaults were significantly less inflammatory than the charges involving Coke. Thus, it was highly unlikely that the jury would base its verdicts on a desire to punish appellant for these prior acts.
As an alternate ground for challenging the section 1109 rulings, appellant appears to contend that domestic violence propensity evidence should only be admitted in cases in which (1) the charged offenses are part of a larger scheme of escalating dominance and control over a domestic violence victim; and (2) either that victim or third party witnesses are uncooperative. As support for this argument, appellant cites People v. Hoover (2000) 77 Cal.App.4th 1020, 1028, and People v. Brown (2000) 77 Cal.App.4th 1324, 1333. Both cases rejected claims that section 1109 violates constitutional due process. The courts' opinions highlighted policy reasons for admitting domestic violence propensity evidence, including that such conduct often recurs and that victims often refuse to cooperate. (People v. Hoover, at p. 1028; People v. Brown, at p. 1333.) But neither case restricts the use of section 1109 to cases in which these policies are directly implicated.
Nor is the language of section 1109 limited to cases in which a defendant has been charged with long-term domestic violence against an uncooperative victim. Rather, the statute expressly applies to any "criminal action in which the defendant is accused of an offense involving domestic violence." (§ 1109, subd. (a)(1).) Murder can be "`the ultimate form of domestic violence' "depending on the facts and circumstances of the case. (People v. Brown (2011) 192 Cal.App.4th 1222, 1225.) Here, there is ample evidence that appellant and Coke were in a domestic relationship—they had a child together; they had resumed their dating relationship; Coke gave appellant financial and moral support; appellant regularly spent time at Coke's home and kept his belongings there. There is also evidence that Coke was a victim of appellant's domestic violence. Appellant does not dispute the trial court's finding that the killing of Coke's beloved dog was such an act, and this domestic abuse was inextricably tied to the murder of which appellant was convicted. Thus, the facts and circumstances of this case support the trial court's conclusion that the charged offenses involved domestic violence.
For all these reasons, we conclude that section 1109 was properly applied to admit evidence of the Vickie R. and Michelle S. assaults.
3. Evidence Admitted Under Section 1101
a. Issues Presented
In their pretrial motion to admit evidence of appellant's uncharged violent acts under section 1109, the People argued that three of those acts were independently admissible under section 1101 as probative of appellant's motive and intent to kill Coke. The trial court agreed, ruling that it would admit evidence of the following uncharged acts under section 1101, subdivision (b): (1) the killing of Coke's dog, Ginny; (2) the strangulation incident involving Vickie R.; and (3) the murder of Marilyn Piggott.
Appellant does not challenge the ruling that evidence he killed Ginny was admissible under section 1101. However, he argues the trial court committed reversible errors by admitting evidence of the Vickie R. assault and Piggott murder because (1) neither act is sufficiently similar to the charged crimes to be probative of his alleged motive or intent to kill Coke; and (2) any probative value was outweighed by countervailing factors under section 352.
The relevance of an uncharged act "depends, in part, on whether the act is sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or other material fact. [Citation.]" (Leon, supra, 61 Cal.4th at p. 598.) "`"In cases in which the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility `depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.'" [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. [Citations.]' [Citation.]" (Cage, supra, 62 Cal.4th at pp. 273-274.) "`In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant "`probably harbor[ed] the same intent in each instance.'"' [Citation.]" (Leon, supra, 61 Cal.4th at p. 598.)
"Where other crimes or bad conduct evidence is admitted to show motive, `"an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself"' [citation], the other crimes or conduct evidence may be dissimilar to the charged offenses provided there is a direct relationship or nexus between it and the current alleged crimes. [Citations.]" (Cage, supra, 62 Cal.4th at p. 274.)
As noted previously, even when an uncharged bad act is probative of motive or intent, that probative value must be weighed against other pertinent factors under section 352, including the danger of unfair prejudice. "`"In applying section 352, `prejudicial' is not synonymous with `damaging.'"' [Citation.] `"`[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.'"' [Citation.] The `prejudice' which section 352 seeks to avoid is that which `"`uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'"' [Citation.]" (Cage, supra, 62 Cal.4th at p. 275, italics omitted.)
b. The Vickie R. Assault
Applying the rules summarized above, we find that section 1101 was an alternative basis for admitting evidence of the Vickie R. incident. That assault was similar to the charged offenses in several respects. Each victim had a child with appellant, locked appellant out of the family home, reported appellant to police, and was subsequently a victim of a violent attack involving strangulation. Thus, the Vickie R. assault was relevant to support the prosecution theory that appellant strangled Coke because she withdrew her financial and practical support, lodged a complaint that resulted in him returning to jail, and attempted to terminate their relationship. Furthermore, the Vickie R. assault was not remote because appellant had been out of custody for a total of only four years since he committed that prior act. Nor was it inflammatory in comparison to what happened to Coke. Thus, the trial court did not abuse its discretion by admitting this evidence as probative of appellant's motive and intent to murder Coke.
c. The Piggott Murder
The record also demonstrates that evidence of the Piggott murder was properly admitted under to section 1101. As noted, the trial court denied the prosecutor's motion to admit this evidence under section 1109 because there was insufficient evidence that the Piggott murder involved domestic violence. But it did find evidence of a prior dating relationship between appellant and Piggott, and it concluded that this fact was one of several "points of similarity" between the two incidents. In addition, the court found that both murders were committed a short time after appellant was released from prison, when he lacked financial security and relied on the victims for money and, to some extent, for a place to stay. Furthermore, appellant stole from both victims, both victims accused appellant of stealing from him, and in both cases these accusations allegedly led to "a violent confrontation that resulted in the death." In light of these multiple similarities, the court properly exercised its discretion by concluding that evidence of the Piggott murder was "highly material and relevant on the issue of motive and intent."
In considering possible countervailing factors under section 352, the court reiterated that the Piggott murder was not too remote because appellant had been incarcerated for most of the relevant time period. Furthermore, there was no evidence that appellant had changed in some way that would diminish the probative value of the evidence. The court also concluded that evidence of the Piggott murder was not unduly inflammatory or prejudicial, noting that the jury would not see any photographic evidence. The court acknowledged that striking someone with a hammer is a very violent act. But it reasonably concluded that the Piggott murder was not more inflammatory than the charged crime because Coke's murder by strangulation was not only violent, but extremely personal, intimate and outrageous.
Appellant argues there are two obvious dissimilarities between these murders: Piggott was murdered with a hammer, while Coke was strangled; and Piggott died in her apartment, while Coke was abandoned in a dry creek bed. The fact that appellant can draw distinctions like this does not mean that the trial court was precluded from considering and relying on the similarities outlined above. Nor do these distinctions dilute the probative value of the Piggott murder. If this evidence had been offered to prove identity or a common plan, the fact that the murder was accomplished in a different physical environment with a different weapon might be of concern. But this evidence was admitted to prove motive and it was probative of the prosecution theory that appellant killed Coke because she was no longer useful to him as a source of support.
Appellant argues that the trial court's section 1101 analysis was fatally flawed because the court assumed that appellant had a prior dating relationship with Piggott and that he was released from prison a short time before Piggott was murdered, but these "supposed similarities" were not established by the trial evidence. "In assessing the trial court's evidentiary ruling, we must consider the facts known to the court at the time the ruling was made. [Citations.]" (People v. Hendrix (2013) 214 Cal.App.4th 216, 243; see also People v. Hartsch (2010) 49 Cal.4th 472, 491.) Thus, appellant cannot establish an abuse of discretion based on alleged insufficiency of the trial evidence.
When the trial court ruled on the motion to admit evidence of the Piggott murder, appellant did not dispute the prosecutor's factual contention that appellant had been released from prison in April 1983, approximately four months before the Piggott murder. Thus, this factor was properly considered by the trial court. Furthermore, the record demonstrates that the trial court was provided with evidence of appellant's prior dating relationship with Piggott. At the pretrial hearing, appellant's trial counsel argued that evidence of a domestic relationship between appellant and Piggott was thin. That defense attorney, who also represented appellant in the Piggott case, recalled that the prosecution theory in Piggott was that a drug dealer was killed by her employee, not by her domestic partner. In response to this argument, the court took a recess and reviewed appellant's testimony from his first murder trial in the Piggott case. Based on that review, the court concluded that there was insufficient evidence that the Piggott murder involved domestic violence, but that there was evidence that Piggott and appellant had dated in the past. These circumstances show that the trial court did not abuse its discretion by considering that appellant had a prior dating relationship with Piggott when evaluating whether to admit evidence of the Piggott murder under section 1101.
For all these reasons, appellant has failed to show that the trial court abused its discretion by admitting evidence of the Vickie R. assault and the Piggott murder under section 1101.
B. Admission of Evidence Regarding Coke's State of Mind
Appellant contends the trial court erred by admitting evidence regarding statements that Coke made about actions appellant took in the spring of 2013 for the purpose of establishing Coke's state of mind at the time of her murder. Appellant characterizes these statements as inadmissible hearsay (§ 1200), and he argues their admission constituted a violation of his constitutional rights to confrontation and due process. Appellant further contends that even if statements Coke made about his "bad acts" were admissible as circumstantial evidence of Coke's state of mind, the trial court committed reversible error by failing to instruct the jury regarding the limited purpose of this evidence "each time Coke's statements were presented at trial."
1. Legal Principles and Standard of Review
"Under the hearsay rule, subject to several exceptions, `evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated' is generally inadmissible. (§ 1200, subd. (a).)" (People v. Kovacich (2011) 201 Cal.App.4th 863, 884 (Kovacich).) Section 1250 creates a statutory exception to the hearsay rule. (Ibid.) As relevant here, section 1250 states that "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant."
Evidence that is admitted under section 1250 is hearsay. "[I]t describes a mental or physical condition, intent, plan, or motive and is received for the truth of the matter stated. [Citation.] If offered to prove the declarant's state of mind, the statement may be introduced without limitation, subject only to section 352. However, the declarant's state of mind must be at issue in the case. For instance, evidence of the victim's general fear or dislike of the appellant is not relevant unless the victim's state of mind has been placed in issue. [Citation.]" (People v. Ortiz (1995) 38 Cal.App.4th 377, 389 (Ortiz); see also Kovacich, supra, 201 Cal.App.4th at pp. 884-885.)
"In contrast, a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not, the fact that such statement was made is relevant to a determination of the declarant's state of mind. [Citation.] Again, such evidence must be relevant to be admissible—the declarant's state of mind must be in issue. [Citation.]" (Ortiz, supra, 38 Cal.App.4th at p. 389.)
Rulings admitting state of mind evidence are reviewed for abuse of discretion. (Kovacich, supra, 201 Cal.App.4th at p. 884.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]' [Citations.]" (Ibid.)
a. Pretrial Rulings
The trial court spent several court days ruling on pretrial motions. At the first hearing on December 9, 2014, the court began by addressing a motion by the prosecutor to admit evidence probative of Coke's state of mind. The proffer included dozens of statements that Coke made to a variety of people, from family to law enforcement to appellant himself. The statements fell into three general categories: expressions of Coke's feelings about appellant; statements about actions appellant had taken that precipitated those feelings; and statements regarding actions that Coke intended to take in the future. The prosecution argued some statements were admissible for their truth, pursuant to the hearsay exception set forth in section 1250, and others were admissible as nonhearsay circumstantial evidence of Coke's state of mind.
At the December 9 hearing, appellant's trial counsel began by arguing that all of this evidence was inadmissible because Coke's state of mind was not relevant. After the court rejected this general objection, defense counsel stated: "So if the Court is going to admit any of this, I think there ought—there has to be some understanding of what's being offered for the truth of the matter stated and what's being offered as an exception to the hearsay rule." The court agreed. Then defense counsel asked: "And assuming we hear any of that testimony, would you be giving that Instruction to the jury at the time that it's being offered? I would ask that you do that." The court responded that it thought it would have to do that and then asked the prosecutor to prepare supplemental briefing to help clarify which statements were being offered for a limited purpose.
The court opined that it would probably face a hearsay issue in any event before state of mind evidence was offered, but that it would also give a limiting instruction "throughout the trial" if it admitted state of mind evidence that was not being offered for its truth. However, the court noted there was an initial problem because it appeared that there was a lot of "overlap" in the sense that many statements were offered under more than one theory. The prosecutor concurred and then proceeded to argue that an instruction limiting the use of evidence of appellant's (uncharged) theft-related conduct during 2013 to a consideration of Coke's state of mind would not be appropriate if the evidence was also admissible under section 1101. After further discussion, the court elected to continue the matter without making any ruling, stating at one point that "I've been sitting up here for 30 years, and I don't think I've ever been more confused than I am now."
More than a week later, on December 17, the court returned to the motion to admit Coke's statements as evidence of her state of mind. At that point, the court had just granted a motion to admit evidence of appellant's uncharged thefts under section 1101 as relevant to prove his intent to commit theft on August 4, 2013, and to rebut the defense that Coke gave appellant permission to use her car and to take money from her bank account on the day of the murder. The court ruled that appellant's taking of the car and headphones, and the forged checks were all admissible under section 1101. The court found that the bike thefts were intertwined with the disappearance of the dog and the extortion of $1,000, evidence which had already been ruled admissible under other provisions of the Evidence Code. The court observed that some of the uncharged theft evidence was also included in the in limine motion to admit state of mind evidence, which the court considered next.
Appellant began by renewing his objection that Coke's state of mind was not relevant at all. In response, the prosecutor outlined two theories of relevancy. First, Coke's mental state was relevant to support the prosecution theory that appellant killed Coke because she broke up with him on August 4, 2013. In other words, evidence that Coke intended to terminate her relationship with appellant because of the way he behaved in the spring of 2013 made it more likely that she acted in conformity with that intent, which gave appellant a motive to kill her. Second, evidence that Coke previously accused appellant of stealing her car and money was relevant to show that she did not give appellant her consent to take her car or debit card that night.
The trial court made a formal ruling that Coke's state of mind was relevant to support the theories outlined by the prosecution, and then proceeded to make separate admissibility rulings as to each statement the prosecutor sought to introduce, admitting many, but excluding others under section 352.
For example, the prosecutor sought to introduce evidence of a conversation between Coke and her friend Michelle Remy during which Coke made direct statements about her fearful feelings toward appellant, and also described threats appellant made that made her fear him. The prosecutor argued that Coke's statement that she was afraid of appellant was admissible hearsay under section 1250, and the rest of the conversation was circumstantial evidence of Coke's state of mind. The court responded that it would be too confusing for the jury to follow a special instruction telling them to consider only part of the conversation for its truth. When the prosecutor suggested that a limiting instruction might not be necessary, the court opined that it seemed likely the defense was "going to want" an instruction about what evidence the jury could consider for its truth and what statements could not be considered for their truth. Thus, the court ruled that the prosecutor should limit questions about this conversation to Coke's statement that she was afraid of appellant.
Defense counsel did not actively participate in the discussion regarding Coke's conversation with Remy, which we have just described. Nor did he request that any particular statement of Coke's that was ruled admissible be accompanied by a limiting instruction. Indeed, during the December 17 hearing, appellant's trial counsel never even alluded to the issue of whether the court should give a limiting instruction for circumstantial state of mind evidence.
b. Limiting Instructions During Trial
On March 17 and 18, 2015, the prosecutor made her opening statement to the jury. After that presentation, the court talked to the jury about the fact that the prosecutor had referenced several uncharged acts by appellant that were going to be discussed at trial, and it gave instructions regarding the limitations attendant to evidence that was going to be admitted under section 1101 and/or section 1109. Then, defense counsel made his opening statement.
The defense theory was that appellant's guilt could not be established beyond a reasonable doubt because the People's evidence was circumstantial and did not establish that appellant had a motive for the crimes. Defense counsel emphasized that appellant had never been violent against Coke, and claimed there was no reason why on August 4, appellant would decide to become violent against a woman he loved and who was going to continue to take care of him. Defense counsel urged the jury to take "with a grain of salt," evidence that Coke allegedly wanted to break off the relationship or was afraid of appellant.
On the afternoon of March 18, the prosecutor elicited testimony from Coke's friend, Wendy Springer. Springer testified that Coke told her that appellant took her car without permission and also stole her bicycles, Jane Doe's headphones, and a camera. Springer gave more detailed testimony about the circumstances surrounding Ginny's disappearance, including the fact that she loaned Coke money so that Coke could pay appellant's demand for $1,000. The defense did not request a limiting instruction with respect to any of this testimony.
A short time later, the prosecutor asked Springer to authenticate Coke's handwriting on the May 9, 2013 statement that Coke wrote for appellant's parole officer. Defense counsel referenced a prior objection but did not repeat it in front of the jury. Then, without waiving that prior objection, the defense stipulated that Springer could read Coke's statement to the jury. After Springer read part of the statement, the court interrupted and held sidebar conference with counsel. Then the court instructed the jury regarding the definition of hearsay, the hearsay rule, and the section 1252 exception to the hearsay rule for evidence offered to prove a declarant's state of mind or to explain acts or conduct of the declarant. The court then stated that Coke's statement was being offered pursuant to the state of mind exception to the hearsay rule and also to explain her conduct.
As our factual summary reflects, several other witnesses testified about conversations they had with Coke about appellant. In addition, the prosecutor was permitted to introduce evidence of a letter Coke wrote to appellant in which she discussed things appellant had done that caused her emotional or psychological harm. As best we can determine, the jury did not receive any limiting instruction regarding its consideration of this evidence.
Appellant first contends that statements Coke made about the things appellant did in the spring of 2013 were inadmissible hearsay because they were not relevant to any disputed issue at trial. We disagree. First, these statements were circumstantial evidence that Coke intended to break up with appellant in August 2013; the acts appellant committed in the spring of 2013 helped explain why Coke wanted to break up with him. Second, statements that Coke made about appellant's theft-related activity were relevant to prove that Coke did not consent to appellant using her car or debit card on the day she was murdered. Evidence of these feelings that Coke had about appellant, including her fear of him and intent to break up with him because of his behavior toward her, were relevant because they gave appellant a motive for the charged murder and robbery.
"Although motive is normally not an element of any crime that the prosecutor must prove, `evidence of motive makes the crime understandable and renders the inferences regarding defendant's intent more reasonable.' [Citation.]" (People v. Riccardi (2012) 54 Cal.4th 758, 815 (Riccardi), disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Unquestionably, motive was a disputed issue in this case. Indeed, according to his opening statement at trial, appellant's primary defense was that he did not have a motive for the charged crimes. Defense counsel told the jury that Coke was the best thing that happened to appellant in his adult life, she was his "bread and meat," she provided him with financial and emotional support, and there was no reason he would kill her.
In Riccardi, supra, 54 Cal.4th 758, the Supreme Court held that evidence of a murder victim's statements that she was afraid of the defendant and that she acted in conformity with that fear by breaking up with him was relevant to the issue of motive when other evidence established that the defendant was aware of the victim's state of mind and may have been motivated by it. (Id. at p. 821.) The same reasoning applies here. The statements that Coke made to family, friends and law enforcement tended to show that Coke was not going to continue to support appellant in the fashion to which he had become accustomed and came to expect from her. Other evidence showed that appellant was aware of Coke's change of heart. Indeed, he went to jail because Coke filed a report with his parole officer. This material change in appellant's relationship with Coke gave him a motive for the charged crimes. Appellant himself articulated that motive while he was still in jail when he told Sean Zukowsky that he would put hands on Coke if she withdrew her financial support.
Appellant contends that Coke's statements about his "bad acts" may have been probative of her state of mind at the time he committed those acts, but they were not probative of her state of mind several months later around the time of her murder, which was the only time when her state of mind could have been relevant. We disagree for two separate reasons. First, appellant went to jail a few weeks after he committed these acts and was not released until a few days before Coke was murdered. This fact effectively precludes appellant from using the mere passage of time to create distance between this uncharged conduct and the charged crimes. Second, appellant's assumption that each of the "bad acts" that he committed in the spring of 2013 had an isolated temporary effect on Coke is flawed. The category of statements that appellant challenges on appeal was relevant, along with the other state of mind evidence, to prove the prosecution theory that Coke decided to terminate her relationship with appellant due to his multiple and increasingly dangerous transgressions during the relatively short period that she allowed him to participate in her domestic life.
According to appellant, the trial record conclusively shows that he and Coke were not estranged at that time of the murder, pointing to evidence that after appellant was released from jail, they continued to spend time together and Coke continued to provide him with moral and financial support. Thus, appellant posits, the "prosecution theory that Coke ended her relationship with appellant around the time of her death was speculative." Appellant's opinion about what the evidence did nor did not show was a jury argument. It does not alter our conclusion that the trial court properly exercised its discretion by admitting the challenged statements as circumstantial evidence of Coke's intention to terminate her relationship with appellant, which gave appellant a motive for the charged robbery and murder.
Appellant's second claim of error with respect to Coke's state of mind evidence pertains to the fact that the trial court gave a limiting instruction only one time, when it admitted evidence of the May 9, 2013 statement Coke gave to appellant's parole agent. Appellant contends that, as a result of the "court's instructional omissions," the jury improperly considered Coke's statements as proof that appellant stole her car, bicycles, headphones, and dog, extorted $1,000 from her, and threatened and scared her.
When a direct declaration of a person's state of mind is admitted for its truth under section 1250, it is not subject to any limiting instruction. (Riccardi, supra, 54 Cal.4th at p. 822; Ortiz, supra, 38 Cal.App.4th at p. 389.) Thus, appellant's claim of instructional error fails to the extent he is contending that he was entitled to a limiting instruction regarding statements Coke made about how she felt about appellant, or what she intended to do.
Different considerations apply, however, to statements that constitute circumstantial evidence of the declarant's state of mind. "This nonhearsay category of statements presents an elevated danger of prejudice if the jury is unable to distinguish between the truth of the matter asserted and the inferences concerning the declarant's state of mind. [Citation.]" (Riccardi, supra, 54 Cal.4th at p. 823.) In such situations, a limiting instruction can clarify the limited purpose for which the evidence is being admitted. However, a limiting instruction is not always required and, indeed, there may be times when "the risk of such an instruction highlighting the defendant's conduct outweighs any benefit the instruction may provide." (Id. at p. 825.)
Thus, absent a request by the defense, the trial court is not required to give a limiting instruction when admitting statements as nonhearsay circumstantial evidence of the declarant's state of mind. (Riccardi, supra, 54 Cal.4th at p. 823.) Rather, such evidence is subject to the general rule set forth in section 355, which states: "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Italics added.)
In the present case, appellant fails to establish that his trial counsel requested a limiting instruction at the time that any statement by Coke was admitted into evidence. As our background summary reflects, during the pretrial hearings, appellant's defense counsel contemplated that such a limiting instruction would be appropriate with respect to circumstantial state of mind evidence, and the trial court agreed. However, by the time such evidence was elicited at trial, defense counsel could have concluded that a limiting instruction would not be useful for a variety of reasons. For example, once the jury became aware of appellant's misconduct during the spring of 2013, defense counsel could reasonably have concluded that requesting a limiting instruction would draw further attention to the evidence. Such a limiting instruction might also highlight the fact that other direct evidence of Coke's state of mind was admitted for its truth. In any event, absent a specific request at the time the evidence was admitted, the trial court did not have an obligation to give the jury a limiting instruction regarding the proper use of circumstantial evidence of Coke's state of mind. (Riccardi, supra, 54 Cal.4th at p. 823.)
Finally, we note that even if the court's limiting instructions were deficient, where the omission of a cautionary instruction is at issue, reversal of the judgment will not be required unless "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Hernandez (2004) 33 Cal.4th 1040, 1054.) In this case, we conclude that given the overwhelming nature of the evidence pointing to appellant's guilt, and other unobjectionable evidence of Coke's state of mind and appellant's motive presented from other witnesses, any failure to give limiting instructions relative to this evidence was harmless.
C. Absence of Instruction on Theft as Lesser Included Offense of Robbery
Appellant was convicted of robbery based on allegations that on August 4, 2013, before Coke was murdered, appellant took personal property from Coke's person, possession, and immediate presence by means of force or fear. Appellant contends that the trial court violated its sua sponte duty to instruct the jury regarding the crime of theft as a lesser included offense of the charged robbery because the jury could reasonably have concluded that appellant did not form the intent to steal from Coke until after she died.
"`"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request."' [Citation.] `Conversely, even on request, the court "has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction."' [Citation.] This substantial evidence requirement is not satisfied by `"any evidence . . . no matter how weak,"' but rather by evidence from which a jury composed of reasonable persons could conclude `that the lesser offense, but not the greater, was committed.' [Citation.] `On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 704-705.)
"`"Theft is a lesser included offense of robbery, which includes the additional element of force or fear." [Citation.] If intent to steal arose only after the victim was assaulted, the robbery element of stealing by force or fear is absent. [Citations.]' [Citations.]" (People v. Castaneda (2011) 51 Cal.4th 1292, 1331.) However, because not just any evidence is sufficient to justify a lesser included offense instruction, "`[i]nstructions on after-acquired intent and theft as a lesser included offense of robbery are unwarranted absent "substantial evidence" that the defendant first formed the intent to take the victim's property after applying force. [Citation.]' [Citation.]" (Ibid.)
In this case, the trial court was not required to give a theft instruction because the record does not contain substantial evidence that appellant formed the intent to steal Coke's car, phone and debit card only after he ceased applying force or fear against her. The prosecution evidence showed that after appellant had repeatedly stolen from Coke without consequence she decided to take steps to prevent appellant from stealing from her in the future. This evidence supported an inference that appellant already intended to steal from Coke when he murdered her on August 4. Although appellant disputed the robbery charge, his defense was not that he only committed theft. The defense theory was that somebody other than appellant killed Coke after she gave appellant consent to use her car and bank card. Evidence supportive of that defense would not support an inference that appellant formed an intent to steal only after Coke was murdered.
Appellant does not contend there is evidence that he formed an intent to steal after he killed Coke. Instead, he argues there is simply no evidence as to when he formulated that intent. Thus, appellant reasons, the jury could have answered the question either way, which means that it could have chosen to convict appellant of theft rather than robbery, and, therefore, the failure to instruct on theft was reversible error.
Appellant's reasoning is flawed. The substantial evidence requirement applies to the lesser included offense; absent substantial evidence that appellant committed the lesser offense but not the greater one, the trial court has no sua sponte duty to instruct. (Castaneda, supra, 51 Cal.4th at p. 1331.) Thus, appellant's concession that there is no evidence he formed the intent to steal only after Coke died confirms our conclusion that an instruction error did not occur. Furthermore, although appellant has not challenged the sufficiency of the evidence to support the robbery conviction, there was substantial evidence to support an inference that appellant formed the intent to steal from Coke while she was still alive. Indeed, on this record the jury could reasonably have found that appellant habitually stole from Coke except during the months that he was unable to do so because he was in jail.
Appellant mistakenly relies on People v. Davis (2005) 36 Cal.4th 510 (Davis). In that case, the prosecution presented evidence of two distinct acts of robbery: the theft of a car from two victims the defendant later murdered; and the theft of rings from one of the victims. (Id. at p. 561.) The takings were not part of the same course of conduct because "the potential defenses to the two acts of robbery were entirely different." (Id. at p. 562.) As to the car, the defense was that this victim was not in possession of the property that was taken. As to the rings, the defense was that this taking constituted only the lesser included offense of theft. Under these circumstances, the trial court erred by failing to give an unanimity instruction with respect to the robbery charge. Furthermore, the error was prejudicial because the evidence supported a robbery conviction based only on the taking of the car. (Ibid.) A witness had testified that defendant and his friends discussed their plan to steal a car on the night in question. But there was no evidence that the rings were taken from one of the victims while she was still alive, and "no evidence regarding when defendant, or any of his accomplices, formed the intent to take [the victim's] rings." (Ibid.) Thus, the jury could have concluded the defendant formed the intent to steal the victim's rings after he killed her, a finding that would have "absolve[d] defendant of guilt of robbery, because one cannot rob a dead person," but would have been consistent with a conviction for theft. Because the evidence would have supported a robbery conviction based on the car but not on the rings, the robbery conviction was reversed. (Ibid.)
Davis, supra, 36 Cal.4th at pages 561-563, addressed a different legal question based on materially different facts. The instructional error alleged in this case pertains to a lesser included offense, not jury unanimity, and, as discussed above, a lesser included offense instruction must be given only when it is supported by substantial evidence. (Castaneda, supra, 51 Cal.4th at p. 1331.) Furthermore, in contrast to Davis, at page 562, appellant's defense to the robbery charge in this case was not that he committed a theft, but that he did not steal anything from Coke on the night of her murder. Finally, while there was no evidence as to when the Davis defendant formed an intent to take rings from the stranger he murdered, in this case there was substantial evidence that appellant formed the intent to steal from Coke before he killed her.
For all these reasons, we conclude that the trial court did not have a sua sponte duty to instruct on theft as a lesser included offense of robbery.
The judgment is affirmed.
REARDON, J. and RIVERA, J., concurs.