People v. Jackson CA4/1

Filed 9/11/20 P. v. Jackson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074547
Plaintiff and Respondent,
v. (Super. Ct. No. JCF36468)
AARON JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed as modified.
Eric R. Larson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
Aaron Jackson participated in a home invasion robbery, along with
Justin Alford and Kevin Scott, that resulted in the death of Donald Tarker.
A jury found Jackson guilty of murder (count 1, Pen. Code,1 § 187, subd. (a));
home invasion robbery (count 2, § 211); first degree burglary with a person
present (count 3, § 459); battery with serious bodily injury (count 6, § 243,
subd. (d)); and conspiracy to commit a crime (count 7, § 182, subd. (a)(1)).
The jury also found that the murder was committed while Jackson was
engaged as a major participant in a conspiracy to commit robbery and
burglary, as alleged in special circumstances to the murder charge. (§ 190.2,
subd. (a)(17).)
Thereafter, the superior court struck the special circumstance
allegation—after finding that a life without the possibility of parole (LWOP)
sentence would constitute cruel and unusual punishment—and sentenced
Jackson to an indeterminate term of 25 years to life, plus a consecutive
determinate term of three years.
Jackson appeals and asserts that there was insufficient evidence to
support the true findings on the special circumstance allegations, that the
trial court erred by failing to instruct the jury as to a lesser-included offense
of simple battery on count 6, and that the abstract of judgment must be
amended to reflect the oral pronouncement of judgment as to count 2. The
People concede that the abstract should be amended, and we agree, but we
are not persuaded by Jackson’s remaining arguments. We therefore instruct
the trial court to amend the abstract of judgment and affirm the judgment in
all other respects.
1 All further statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
May 25, 2016 Home Invasion
Tarker, the primary victim, operated a marijuana dispensary out of his
home in Salton City. Jackson and Alford knew about the dispensary and, in
May 2016, they decided to rob Tarker and steal the marijuana.
On May 20, Alford messaged Jackson and said, “I went to ol’ boy house
this morning. I went right past it, too. . . . And we need to go ASAP. . . . It’s
waiting for us.” However, Tarker’s house was approximately an hour away,
so they needed a ride. They asked Scott and he agreed to drive them to
Tarker’s. Alford asked Scott to call Tarker’s phone and, on May 24, Scott
texted Alford and said Tarker did not answer. He then said, “I’ll keep calling
them. We ain’t paying for shit.”
The next day, May 25, Tarker arrived home from the hospital after
undergoing brain surgery related to head injuries he sustained in a separate
home invasion that occurred approximately 30 days earlier. That evening,
Tarker had a number of friends over, including Andrew R., Angela W., and
Angela’s 16-year-old daughter Destiny. Tarker was acting normal, talking
with his friends, and walking around the house.
At approximately 7:00 p.m., Scott picked up Jackson and Alford and
drove to Tarker’s. Jackson was wearing a white T-shirt and black pants, and
Alford was wearing gray jogging pants, gray shoes, and a “whitish grayish”
shirt.2
They arrived and knocked on the front door of Tarker’s house sometime
between 8:00 p.m. and 9:00 p.m. Tarker opened the door to speak with them
2 Later, in the car, Scott noticed blood on Alford’s shirt and handed him a
blue sweater to put on.
3
but left the screen door closed and locked. He then went into the kitchen and
returned a couple of minutes later. Tarker unlocked the screen door and one
or more of the assailants charged in, causing him to yell, “no,” and fall
backwards onto the ground.
Destiny saw two young African-American men, whom she later
identified as Jackson and Alford, enter the living room. They were both
wearing blue latex “doctor gloves.” Alford hit Angela and Jackson hit
Destiny, knocking her out.
Andrew was hit on the left side of his eye but was not sure what hit
him. He had been drinking and smoking marijuana and did not recall much
from the evening. Angela heard Andrew get hit but did not see who hit him.
She heard Alford yelling and assumed it was him who hit Andrew, but she
was not sure.
Alford asked Angela where the “stuff” was and threatened her, asking
“Was this worth dying over?” Alford continued to hit Angela, approximately
50 to 75 times, and she eventually pretended to be unconscious so he would
stop. She felt one of the men feel around her pants pockets for her phone and
heard them find her and Destiny’s purses.
Destiny eventually regained partial consciousness; she could hear the
men yelling but she could not move or see. She heard the front door shut and
then came back into full consciousness. Angela was bleeding, Andrew was
unconscious, and her and Angela’s phones and purses were missing.
After leaving the house, Jackson and Scott went to put the bags of
marijuana in the trunk of Scott’s car. In their rush to open the trunk,
Jackson ripped the license plate holder off. According to Scott, Alford was the
last to leave the house.
4
Angela waited a few minutes to ensure the men were gone and then
crawled to the kitchen, found the house phone, and called 911. She told the
operator that two people had come into the house and attacked them and that
the individual who hit her was wearing a white T-shirt and black pants.
Around the same time, Imperial County Sheriff’s Deputy E. Ramirez
was driving down Highway 86 towards Salton City. He noticed a white car
traveling northbound on the service road. The car drew his attention because
the license plate cover was missing, causing the license plate lamps to be
unusually bright.
Approximately nine minutes later, at 9:09 p.m., Ramirez received a
dispatch call regarding the incident. Ramirez was near Tarker’s house at
that point and arrived on the scene just a few minutes later. He could see
Angela in the kitchen, through a window, and noted that her face and hair
were covered in blood. He entered through the front door and found a tall
White adult male, later identified as Tarker, lying on the ground with his feet
toward the door, unresponsive. Tarker was not breathing and Ramirez was
not able to get a pulse. Another officer cleared the residence while Ramirez
began CPR.
Emergency Medical Technicians (EMT’s) arrived approximately 10
minutes later and took over treatment of Tarker. The medics were unable to
revive Tarker and he was pronounced dead at the scene just before 10:00 p.m.
A deputy coroner examined the body at approximately 11:30 p.m. Tarker had
small lacerations and blunt force trauma injuries in several places on his
body, including his head and back. In particular, there were “fresh” injuries
to Tarker’s right eye, right temple, left temple, and back consistent with
blunt force trauma. A forensic pathologist later confirmed that Tarker died
from blunt force trauma inflicted within one hour of his death but could not
5
determine whether there was one definitive injury, or blow, that caused his
death.
Angela and Andrew were transported to the hospital via ambulance.
Andrew had a one-inch long gash near his left eye and received eight to 10
stitches. Angela’s nose was crushed, and her jaw was broken in three places.
She was transported to a larger hospital for surgery and remained
hospitalized for about a week. Destiny did not go to the hospital that
evening, but she did experience chronic headaches for approximately two
months after the assault.
The Arrest and Investigation
After the EMT’s arrived, Ramirez put out a BOLO (be on the lookout)
for the white car with the missing license plate cover that he had seen in the
area just before receiving the dispatch call. The BOLO also identified three
Black males as potential occupants, based on the descriptions given by the
victims at the scene.
Meanwhile, Jackson, Alford, and Scott stopped at Brian’s house to drop
something off. While they were parked outside, Alford went through the
purses and then threw them in a trashcan across the street. After leaving
Brian’s, they proceeded back toward Highway 86.
At 9:30 p.m., approximately 15 minutes after the BOLO went out,
Agent Ascencio with the U.S. Border Patrol identified the vehicle traveling
down Highway 86, in the opposite direction as Tarker’s residence. Ascencio
notified dispatch and stopped the vehicle. As he approached, he noticed a
strong odor of marijuana emanating from the vehicle. Ascencio confirmed
that there were three Black males in the vehicle and then returned to his
vehicle to request backup.
6
When additional officers arrived, they secured the area and placed
Scott, Jackson, and Alford in separate police vehicles. Agent Ascencio then
conducted a search of the vehicle and located several bags containing what
appeared to be marijuana plants, a bag full of clothing with bloodstains, and
a number of other items. In addition, officers discovered a camcorder and
tripod that belonged to Tarker in the trunk and a baseball bat in the backseat
of the car.
After learning the border patrol had stopped a vehicle matching the
description he gave, Ramirez drove to the location of the stop and confirmed
that the car was the same car he had seen earlier that evening. Scott was
subsequently identified as the driver, and Jackson and Alford were identified
as the two passengers.
Sergeant Masad, the lead investigator on the matter, was at Tarker’s
residence when he learned the car had been located. Shortly after receiving
the call, he left the residence and took Destiny to the location of the traffic
stop to see if she could identify the suspects. It was nearly 11:00 p.m. by the
time they arrived and there was minimal lighting available. Destiny
remained in the back of Masad’s vehicle, and a deputy walked each of the
suspects to the front the vehicle, one at a time. Destiny could not identify
any of the suspects. She was certain that she had not seen Scott at Tarker’s
but was not certain as to Jackson or Alford.
Jackson, Alford, and Scott were processed for evidence and interviewed.
There was blood on Jackson’s white T-shirt, on a dark-blue long-sleeved shirt
worn by Alford, and on Alford’s socks and shoes. The clothing was collected,
and subsequent DNA testing indicated that Andrew was a primary
contributor to the DNA in the blood.
7
Alford had a number of small cuts on his knuckles, consistent with the
type of injuries typically sustained during an assault or fistfight. They were
no longer bleeding but appeared to be “fresh” as they were still reddish and
not dark. Alford had two stacks of five-dollar bills and a bag of marijuana in
his pockets. When asked if the money and marijuana belonged to him, he
said that one stack of money was his, but admitted he took the other stack
and the marijuana from Tarker’s residence.3
Alford initially said that he was not at Tarker’s and did not know
anything about the home invasion. He said he got into a fight at his friend
Brian’s house, which was nearby in Salton City, and the blood on his clothing
was his own. He said Scott picked him up after the fight and the police
pulled them over shortly thereafter.
He then changed his story and admitted he had gone to Tarker’s. He
said his friend Brian told him there was marijuana in the bedrooms and
assured him that no one would be home. He met Brian, Scott, and Jackson at
a convenience store earlier that evening, discussed the plans, and then he,
Scott, and Jackson went to Tarker. He said they had not actually gone to
Brian’s house and the blood on his pants was from a fight with a “cholo”
before they left Indio. Alford claimed he was the last one to enter Tarker’s
house, went straight to the bedroom to put the marijuana in the bags, and
did not touch any of the victims.
Jackson initially said that he was not involved in the plan, did not
enter the house, and was just a lookout. He later admitted they had planned
to steal the marijuana and said Tarker fell when they rushed through the
3 The court instructed the jury to consider Alford’s statements only in
deciding Alford’s case, and not to consider them as to Jackson.
8
door. He said Tarker was conscious after the fall and was trying to poke him
with a metal object, but that he saw Tarker on the ground when they were
leaving and thought he looked dead. Jackson also admitted that he went into
the house and helped fill a duffle bag with marijuana. He said he changed
his shirt in the car and threw the one he was wearing during the robbery out
the window on the freeway.
Scott admitted that he was the driver and that he stole marijuana from
Tarker’s home but claimed that his involvement was “minor.”
Masad interviewed Angela five days later, on May 31. He showed her
three sets of six photographs (six-packs), each of which included a photograph
of Jackson, Alford, and Scott. Angela did not identify Scott but she did
identify Jackson and Alford as the two men that she saw during the home
invasion and further identified Alford as the individual who assaulted her.
A deputy sheriff went to look in the trashcan near Brian’s house for the
purses but when he arrived, the trashcans in the area were empty. A
neighbor told him the trash had been picked up earlier that morning, so he
went to the city landfill and eventually located the purse in the trash that
had been dropped off that day.
Scott Agrees to Testify Against Jackson and Alford
In January 2018, Scott entered a plea agreement and agreed to testify
against Jackson and Alford in exchange for a more lenient sentence.
In a follow-up interview with Masad, he said that Alford texted him
and asked him to call Tarker to see if he was home. He drove Jackson and
Alford to Tarker’s house and, when they got there, Alford told him to knock
on the door and ask for some “weed.” Tarker said, “let me check” and went
into the house, closing the screen door but leaving the main door open.
Tarker returned with a green bottle. He opened the door and Jackson and
9
Alford rushed in. Alford told Tarker to lay down on the floor and asked him
“where’s the weed?”
Scott heard Alford and Jackson “tussling” with Tarker and Alford later
told him that Tarker was trying to hit him with some sort of metal object.
Scott indicated that both Alford and Jackson were fighting with Tarker, and
that he saw Jackson punch Tarker and take the metal object away from him.
It then became quiet and Alford ran toward him and handed him some
gloves. He then helped pack a number of marijuana plants into bags. Scott
and Jackson took the bags to the car and Alford stayed behind. Scott heard
yelling and screaming and then Alford emerged with a bag and two purses.
Scott testified consistently with this account at trial. Specifically, Scott
testified that Jackson wrestled the metal object away from Tarker and hit
Tarker with his fist at least a couple of times. He said Alford also hit Tarker
several times after Jackson removed the metal object and Tarker stopped
moving shortly thereafter.
Defense Case
Dr. Mitchell Eisen, an expert in eyewitness identification, testified
regarding eyewitness identifications. He opined a witness who recalled
seeing two assailants and did not identify one of the assailants in the first of
three photo arrays would be more likely to “pick” someone in the second and
third arrays. He further explained that sometimes an identification is made
based on suggestive elements in the photograph, as opposed to actual
recognition.
Jackson testified on his own behalf at trial. Jackson testified that he
was 20 years old at the time of the murder, that this was his first arrest, and
that he had had not previously been convicted of any crimes. He met Scott
10
approximately six months before Tarker’s murder and they both worked as
security guards at a local grocery store.
He said that he went to Tarker’s with Scott and Alford on May 25 but
thought they were going to buy marijuana, not to commit any crimes. He
said it was Scott who initially charged into the house when Tarker brought
the marijuana out and opened the door. The door hit Tarker in the head,
causing him to fall straight back and hit the back of his head on the ground.
Alford handed Jackson a black bag and either he or Scott directed Jackson to
go to the bedroom and fill the bag with marijuana. Jackson testified that he
never entered the living room and did not assault anyone. When they had all
gotten into the car to leave, Scott said he forgot his phone and went back into
the house alone.
Jackson’s hands were photographed on the evening of the murder and
he did not have any injuries, cuts, or abrasions on his knuckles or anywhere
else. He asserted that was because he did not touch anyone that evening.
A.G. testified that he previously shared a cell with G.V., and that Scott
bragged to him and G.V. about killing Tarker. He said Scott told them he
went back to the house a second time and “went too far.” Specifically, A.G.
testified that Scott said, “I feel sorry for what I did. And I went over [sic] my
hands, and I killed the guy. And I should have never went there the second
time. I put him away.” In addition, Scott told A.G. and G.V. that he was
going to point to someone else to “get out of it.”
At the time of trial, A.G. was housed in the same module as Jackson.
A.G. talked and played cards with Jackson but said that he was testifying
voluntarily and not to benefit Jackson.
11
Sentencing
The jury found Jackson guilty on all counts and found the special
allegations to be true. The superior court struck the special circumstance
murder allegations as to Jackson on count 1, in part based on a finding that
an LWOP sentence would constitute cruel and unusual punishment under
the circumstances. The court then sentenced Jackson to prison for a total
term of 25 years to life, plus a consecutive three years on count 6.
DISCUSSION
I.
Sufficient Evidence Supports the Felony Murder Special
Circumstance Findings
Jackson asserts there was insufficient evidence to support the jury’s
true finding on the special circumstance.
A. Relevant Legal Principles
Section 190.2 enumerates felony-murder special circumstances
requiring a sentence of either death or life without the possibility of parole.
Of relevance here, robbery and burglary are included in the felonies
enumerated in paragraph (17) of subdivision (a). (§ 190.2, subds. (a)(17)(A) &
(a)(17)(G).)
Section 190.2, subdivision (c), states, “Every person, not the actual
killer, who, with the intent to kill, aids, abets, counsels, commands, induces,
solicits, requests, or assists any actor in the commission of murder in the first
degree shall be punished by death or imprisonment in the state prison for life
without the possibility of parole if one or more of the special circumstances
enumerated in subdivision (a) has been found to be true . . . .”
In addition, section 190.2, subdivision (d) further provides
“Notwithstanding subdivision (c), every person, not the actual killer, who,
12
with reckless indifference to human life and as a major participant, aids,
abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which
results in the death of some person or persons, and who is found guilty of
murder in the first degree therefor, shall be punished by death or
imprisonment in the state prison for life without the possibility of parole if a
special circumstance enumerated in paragraph (17) of subdivision (a) has
been found to be true . . . .”
Accordingly, a felony murder falls under the special circumstance
statute if the defendant is not the actual killer but is a major participant
who, with either the intent to kill or a reckless indifference to human life,
aids, abets, or assists in the commission of a robbery or a burglary. (§ 190.2,
subds. (a)(17)(A), (a)(17)(g), (c), (d); People v. Estrada (1995) 11 Cal. 4th 568,
572 (Estrada).)
B. Analysis
Here, the verdict form for count 1 (felony murder) for Jackson
contained the following special allegations: (1) “that the murder was
committed while the defendant was engaged in, or a member of a conspiracy
to commit, Robbery in violation of . . . Sections 211 or 212.5 and was the killer
or was a major participant as alleged in the Special Circumstance”; and (2)
“that the murder was committed while the defendant was engaged in, or a
member of a conspiracy to commit, Residential Burglary in violation
of . . . Section 460, and was the killer or was a major participant as alleged in
the Special Circumstance.” In connection with the foregoing allegations, the
superior court instructed the jury, “[i]f you decide that the defendant is guilty
of first degree murder, but you cannot agree whether the defendant was the
actual killer, then, in order to find this special circumstance true, you must
13
find that the defendant acted with intent to kill or you must find that the
defendant acted with reckless indifference to human life and was a major
participant in the crime.” The jury found both allegations true.
Jackson asserts those findings should be reversed because they were
not supported by sufficient evidence. Specifically, he concedes there was
sufficient evidence to support the guilty verdicts for counts 1 through 3—
felony murder, robbery and burglary—but asserts the prosecution did not
allege he was the actual killer and did not present sufficient evidence to
establish he was a major participant who acted with either an intent to kill or
a reckless indifference to human life.
1. The Superior Court Struck the Special Circumstance Finding
and Jackson Suffered no Prejudice as a Result
As an initial matter, Jackson suffered no prejudice as a result of the
special circumstance finding. The superior court struck the special
circumstance allegations as to Jackson and sentenced him to the standard
term, absent a section 190.2 special circumstance finding, of 25 years to life
on count 1. Accordingly, “there was no ‘error that worked against [him]’ ” and
no prejudice requiring reversal. (See People v. Avila (2006) 38 Cal. 4th 491,
600; cf. People v. Banks (2015) 61 Cal. 4th 788, 794, 804-812 [special
circumstance reversed for insufficient evidence where defendant was actually
sentenced to LWOP]; cf. People v. Clark (2016) 63 Cal. 4th 522, 624 (Clark)
[decision vacating special-circumstance findings does not require reversal of
death penalty where additional special circumstance findings were not
vacated].)
14
2. Substantial Evidence Supports the Special
Circumstance Finding
Regardless, and in an abundance of caution, we address the merits of
Jackson’s argument and conclude there was sufficient evidence to support the
special circumstance findings.
We review a challenge to the sufficiency of the evidence to support a
special circumstance finding in the same manner as a challenge to the
sufficiency of the evidence supporting a conviction. (People v. Cole (2004) 33
Cal. 4th 1158, 1229; People v. Mayfield (1997) 14 Cal. 4th 668, 790-791.) We
independently review the record as a whole in the light most favorable to the
judgment and determine whether substantial evidence supports the finding.
(People v. Banks (2015) 61 Cal. 4th 788, 804 (Banks); People v. Story (2009) 45
Cal. 4th 1282, 1296 (Story).) Substantial evidence is evidence that is
reasonable, credible, and of solid value, which would allow a reasonable trier
of fact to find the defendant guilty beyond a reasonable doubt. (Banks, at
p. 804; Story, at p. 1296.) The existence of evidence that might also
reasonably support a finding to the contrary, without more, is not sufficient
to warrant a reversal. (Story, at p. 1296.)
a. Evidence Jackson was a Major Participant
We consider the following factors when determining whether a
defendant was a “major participant”:
“What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death?” (Banks, supra, 61 Cal.4th at
p. 803.)
15
Here, there was substantial evidence that Jackson was at least
somewhat involved in the planning of the crime, was present at the scene of
the crime, was in a position to facilitate or prevent Tarker’s murder, and his
actions or inaction played a role in Tarker’s death. (Banks, supra, 61 Cal.4th
at p. 803.) Specifically, Jackson and Alford texted about going to Tarker’s
house on May 20, five days before the murder, and Jackson later admitted
that they planned to steal Tarker’s marijuana. Further, there was evidence
at trial indicating Jackson entered the house with the other assailants, even
after learning the house was occupied, assaulted at least one of the
individuals in the home, and took the metal object that Tarker was using to
defend himself. Finally, there was evidence that Jackson carried out the plan
to steal the marijuana, after witnessing and participating in the assaults,
and fled the scene without rendering any aid to Tarker or the other victims.
Addressing the factors set forth in Banks, Jackson argues he did not
have a role in planning the robbery and that Scott and Alford had originally
planned to go without him a couple of days earlier. Although Scott did testify
that he agreed to take Alford to Salton City on May 23, there was no
indication that they were planning to go without Jackson. Instead, the text
message between Alford and Jackson indicates Jackson was involved as early
as May 20.
Next, Alford asserts there were no weapons used and he did not have
awareness of the dangers posed by the nature of the crime or past experience
or conduct of the other participants. To the contrary, a home invasion is an
inherently dangerous crime and, while it does appear that fists were the only
weapons used, there was ample evidence Jackson played a role in using
them. Specifically, there was evidence Jackson entered the house knowing
there were multiple individuals present, carried through with the plan to
16
steal the marijuana after witnessing and participating in the violent assault
of all four occupants, and made no effort to render aid to Tarker. (See People
v. Mora (1995) 39 Cal. App. 4th 607, 617; Tison v. Arizona (1987) 481 U.S. 137,
152 [the defendant “participated fully in the kidnapping and robbery and
watched the killing after which he chose to aid those whom he had placed in
the position to kill rather than their victims”]; cf. Banks, supra, 61 Cal.4th at
p. 805 [defendant who has acted solely as a getaway driver and was absent
from the scene when the murder occurred was not a major participant].)
Finally, Jackson argues there was no obvious fatal blow, no one
expected Tarker to die from his injuries, and the fact that he failed to render
aid was mitigated by the fact that there were several other people in the
house. To the contrary, Jackson witnessed the assault on Tarker and
testified, himself, that Tarker was unconscious when he left. Moreover, there
was substantial evidence the other three victims were also unconscious, or at
least pretending to be unconscious, when Jackson and the others left the
scene, and all of them were inside the residence, where they were not likely
to be seen by a passerby. Thus, as far as Jackson knew, Tarker was
unconscious and there was no one available to call for help or render aid. It
was therefore reasonable for the jury to infer that Jackson was at least aware
of the risk that Tarker might die from his injuries after he fled the scene.
b. Evidence of Reckless Indifference
The phrase “reckless indifference to human life” does not have any
special meaning under the law, and simply requires that the defendant be
subjectively aware that the criminal activity that they are participating in
involves a grave risk of death. (People v. Mil (2012) 53 Cal. 4th 400, 417;
Estrada, supra, 11 Cal.4th at p. 577.)
17
Jackson relies primarily on Clark, supra, 63 Cal. 4th 522 to assert there
was insufficient evidence he acted with reckless indifference. There, the
California Supreme Court considered “the specific facts of Clark’s case in
light of some of the case-specific factors that this court and other state
appellate courts have considered in upholding a determination of reckless
indifference to human life in cases involving nonshooter aiders and abettors
to commercial armed robbery felony murders.” (Id. at p. 618.) The court
ultimately determined there was insufficient evidence Clark acted with
reckless indifference to human life. (See id. at p. 623.) However, as the court
in Clark explained, “ ‘[n]o one of these considerations is necessary, nor is any
one of them necessarily sufficient.’ ” (Id. at p. 618) In any event, we are not
persuaded by Jackson’s analysis of the Clark factors.
First, Jackson argues neither he nor either of his coassailants brought
or used any weapons. (See Clark, supra, 63 Cal.4th at p. 618.) Although this
may be a significant factor in some cases, here the assailants used their fists
to render several victims unconscious, killing one, and seriously wounding
another. Jackson was admittedly inside the house when the beatings
occurred and there was evidence he assisted in removing the metal object
Tarker was using to defend himself, substantially increasing the risk of
substantial injury or death. Citing the fifth factor addressed in Clark—the
“defendant’s efforts to minimize the risks of the violence during the felony”—
Jackson argues that taking the metal rod and punching Tarker in the chest
somehow prevented a further escalation of violence. We disagree.
Next, Jackson argues Tarker’s death was not a culmination or a
foreseeable result of several intermediate steps or a situation where the killer
exhibited behavior suggesting a willingness to use lethal forces. (See Clark,
supra, 63 Cal.4th at p. 619.) To the contrary, as discussed ante, there was
18
evidence Jackson was present when all four individuals in the house were
beaten to the point of unconsciousness and personally assisted in rendering
Tarker defenseless. In a related argument, Jackson again asserts his failure
to render aid was minimized by the fact that there were three other
individuals in the home but, as discussed ante, the other individuals either
were or appeared to be unconscious when Jackson left the scene.
Next, Jackson argues the duration of the felony was relatively short,
approximately 10 to 15 minutes, and thus was insufficient to exhibit an
indifference to human life. (See Clark, supra, 63 Cal.4th at p. 620.) While
there was evidence suggesting the assailants believed no one would be home,
once the assailants realized there were several individuals at the house, they
continued with the plan and subdued the victims by using physical force
sufficient to render them unconscious. By contrast, in Clark, the assailants
planned to subdue the store employees by handcuffing them in the bathroom
and the murder occurred only when an employee’s mother entered the store
and took them by surprise. (Id. at p. 539.) Thus, contrary to Jackson’s
assertion, the duration of the use of inherently dangerous physical force in
connection with the felony was more significant here.
Finally, Jackson asserts there was no evidence Alford or Scott had a
prior history of murder or propensity to violence. (See Clark, supra, 63
Cal.4th at p. 621; In re Ramirez (2019) 32 Cal. App. 5th 384, 405.) On this
point, we agree. However, this one factor, alone, is not sufficient to overcome
the remaining evidence indicating Jackson did act with a reckless disregard
to human life. (See Clark, at p. 623.)
19
We therefore conclude substantial evidence supports the jury’s felony
murder special circumstance findings.4
II.
The Superior Court Did Not Err By Failing to Instruct the Jury on the Lesser
Included Offense of Simple Battery With Respect to Count 6
In count 6, Jackson was charged and convicted of battery causing
serious bodily injury to Destiny in violation of section 243, subdivision (d).
He asserts the superior court prejudicially erred by not instructing the jury
on the lesser included offense of simple/misdemeanor battery in violation of
section 242. We disagree.
A crime constitutes a lesser included offense if it satisfies either the
elements test or the accusatory pleading test. (People v. Reed (2006) 38
Cal. 4th 1224, 1227-1228.) A crime satisfies the elements test if all the
elements of the lesser offense are also elements of the greater offense. (Id. at
p. 1227.) A crime satisfies the accusatory pleading test if the facts alleged in
support of the greater offense include all the elements of the lesser offense.
(Id. at p. 1228.)
4 While the appeal was pending, Jackson identified the recently filed
California Supreme Court opinion, In re Scoggins (2020) 9 Cal. 5th 667
(Scoggins), as relevant new authority. In Scoggins, the Court noted the
opinions in Banks and Clark clarified the meaning of the special
circumstances statute, after Scoggins’s conviction became final, and
ultimately concluded Scoggins did not exhibit reckless indifference to human
life in light of those clarifications. (Scoggins, at p. 676.) Here, we have
considered both Banks and Clark in concluding there was substantial
evidence Jackson did act with reckless indifference to human life. Unlike
Scoggins, who was not present for much of the underlying crime, Jackson was
present for, and likely participated in, the assaults, and failed to intervene or
render aid, despite the absence of other bystanders capable of doing so. (Cf.
Scoggins, at pp. 678-680.)
20
As relevant here, section 242 defines battery as “any willful and
unlawful use of force or violence upon the person of another.” Section 243,
subdivision (a) states, “a battery is punishable by a fine not exceeding two
thousand dollars ($2,000), or by imprisonment in a county jail not exceeding
six months, or by both that fine and imprisonment.” Section 243, subdivision
(d) further states, “When a battery is committed against any person and
serious bodily injury is inflicted on the person, the battery is punishable by
imprisonment in a county jail not exceeding one year or imprisonment
pursuant to subdivision (h) of Section 1170 for two, three, or four years.”
(§ 243, subd. (d).) Finally, subdivision (f)(4) of section 243 defines “serious
bodily injury” as, “a serious impairment of physical condition, including, but
not limited to, the following: loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement.”
Jackson acknowledges that there is no authority indicating that battery
pursuant to section 242 is a lesser included offense of battery causing serious
bodily injury pursuant to section 243, subdivision (d). The People agree that
“it appears that simple battery is a lesser-included offense of battery with
serious bodily injury under the elements test.” We need not, and expressly do
not, decide the issue in this case. Assuming without deciding that simple
battery is a lesser included offense of battery causing serious bodily injury,
there was insufficient evidence to support the instruction in this case and, in
any event, Jackson suffered no prejudice as a result of the omission.
A. There Was Not Substantial Evidence to Support an Instruction
on Simple Battery
The superior court has a sua sponte duty to instruct on lesser included
offenses that are supported by substantial evidence. (People v. Breverman
(1998) 19 Cal. 4th 142, 162 (Breverman).) The court “is not obligated to
21
instruct on theories that have no evidentiary support.” (Ibid.) “ ‘Substantial
evidence’ in this context is ‘ “ ‘evidence from which a jury composed of
reasonable [persons] could . . . conclude[]’ ” ’ that the lesser offense, but not
the greater, was committed.” (Ibid.) On appeal, we apply a de novo standard
of review and independently determine whether an instruction on a lesser
included offense should have been given. (Ibid.) However, we do not weigh
the evidence or evaluate the credibility of witnesses, as that is the purview of
the jury. (Ibid.; People v. Elize (1999) 71 Cal. App. 4th 605, 615; People v.
Manriquez (2005) 37 Cal. 4th 547, 584.) We simply determine whether there
was evidence “ ‘substantial enough to merit consideration’ by the jury” that
the defendant is guilty only of the lesser offense. (Breverman, at p. 162.)
Here, the uncontroverted evidence indicated Destiny suffered serious
bodily injury. Destiny testified that she was knocked unconscious by the
blow to her face, and that she suffered from chronic headaches for
approximately two months after the assault. Neither Jackson, nor any other
party, offered any evidence to contradict Destiny’s testimony.
Jackson concedes this evidence constituted legally sufficient evidence of
serious bodily injury but argues the jury may still have found him guilty of
the lesser included offense of simple battery, if properly instructed, because
Destiny’s injuries were not permanent. In support of his assertion, Jackson
cites a number of cases in which the defendant hit or punched the victim and
the court found a conviction or instruction on simple battery or assault
appropriate; however, none of these cases involved a loss of consciousness or
ongoing injuries akin to the chronic headaches Destiny suffered. (See People
v. Fuentes (1946) 74 Cal. App. 2d 737, 740-742 [victim sustained a single cut
that did not require stiches]; People v. Brown (2016) 245 Cal. App. 4th 140, 146
[defendant swung at officers in an alleged effort to resist arrest but the
22
officers sustained no injuries as a result]; People v. Jennings (2000) 81
Cal. App. 4th 1301, 1306-1307 [victim sustained “a big lump” on her head but
no evidence of losing consciousness]; People v. Roth (1964) 228 Cal. App. 2d
522, 530 (Roth) [victim sustained a cut mouth and some bruises].) Moreover,
in Roth, the court specifically noted that the victim “suffered no bodily injury
other than a cut mouth and some bruises” and stated that an instruction on
the lesser included offense of simple assault was particularly appropriate
because of the absence of serious injuries. (Roth, at p. 530.) Accordingly, none
of these cases suggest that a loss of consciousness does not constitute a
serious bodily injury.
Jackson also relies on People v. Taylor (2004) 118 Cal. App. 4th 11, in
which the victim suffered a “small crack” in the bone around her eye. (Id. at
p. 17.) In a footnote, and in the context of discussing whether the jury’s
finding of serious bodily injury could be deemed equivalent to a finding of
great bodily injury, the court concluded, “not every bone fracture constitutes
serious or great bodily injury as a matter of law.” (Id. at p. 25, fn. 4.) The
court noted that bone fractures are listed as one example of a “serious
impairment of physical condition” in section 243, subdivision (f)(4) but
explained the injuries enumerated in the statute were simply examples of
injuries that could be serious bodily injuries if they resulted in “a serious
impairment of physical condition.” (Ibid.) Unlike bone fractures, though,
which may vary significantly in severity, a loss of consciousness either occurs
or does not. Moreover, the uncontroverted evidence here indicated Destiny
was fully unconscious for a significant period of time, nearly the entire time
the assailants were in the home, and then only regained consciousness
slowly.
23
B. Jackson Suffered No Prejudice
Even if we were to conclude, which we do not, that the superior court
erred by failing to instruct on the lesser included offense of simple assault,
Jackson suffered no prejudice as a result. An error in failing to instruct on a
lesser included offense in a noncapital case is subject to review under the
prejudice standard set forth in People v. Watson (1956) 46 Cal. 2d 818, 836.
(People v. Gonzalez (2018) 5 Cal. 5th 186, 202; People v. Beltran (2013) 56
Cal. 4th 935, 955.) Under that standard, the failure to instruct requires
reversal only if there is a reasonable probability based on the overall record
that the jury would have found the defendant guilty of the lesser offense had
they been appropriately instructed. (See Watson, at p. 836; Gonzalez, at
p. 202.)
Here, as discussed, the uncontroverted evidence clearly established
Destiny suffered a serious bodily injury. (See People v. Ochoa (2001) 26
Cal. 4th 398, 456 [omission of instruction is not prejudicial in the absence of
evidence supporting the instruction].) The court instructed the jury on the
meaning of “serious bodily injury,” consistent with the definition set forth in
section 243 and, in convicting Jackson, the jury necessarily concluded
Destiny suffered serious bodily injury. (See § 243, subd. (f)(4).) Defense
counsel argued at length that the evidence was insufficient to positively
identify Jackson as the individual who hit Destiny but, not surprisingly given
the evidence, defense counsel did not even suggest that Destiny did not suffer
serious bodily injury, despite the fact that the instructions to the jury clearly
indicated that they could not convict Jackson unless she did actually suffer a
serious bodily injury.
Jackson asserts the jury may have been compelled to offer him leniency
on the assault charge, if given the option, based on the overall severity of the
24
charges but, of course, to do so would be improper. (See People v. Williams
(2001) 25 Cal. 4th 441, 459 [a jury may not disregard the law and reach a
verdict based on personal views or beliefs].)
Based on the foregoing, we conclude the superior court did not err in
failing to instruct the jury on the lesser included offense of simple battery,
and, even if it did, Jackson was not prejudiced by the omission.
III.
The Abstract of Judgment Must be Amended to Reflect a Stayed
Middle Term of Four Years on Count 2
The People charged, and the jury convicted Jackson, on count 2
pursuant to section 213, subdivision (a)(1)(B). In discussing the sentence for
count 2, the court stated, “the potential terms that the [c]ourt could impose
would be the lower, middle or upper, and that’s three, six, or nine years. I’m
choosing the middle term given the facts and circumstances of the case, but
I’m staying it under 654.” Consistent with that statement, the abstract of
judgment reflects a stayed term of six years for count 2. However, the middle
term for residential robbery pursuant to section 213, subdivision (a)(1)(B) is
actually four years, as opposed to six. (See § 213, subd. (a)(1)(B).)
Jackson asserts, and the People concede that the abstract of judgment
must be amended to reflect a four-year stayed sentence for count 2. We
agree, and therefore modify the judgment accordingly. (See In re Jonathan T.
(2008) 166 Cal. App. 4th 474, 482-484; In re Sheena K. (2007) 40 Cal. 4th 875,
886 [it is appropriate to correct an unauthorized sentence at any time].)
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DISPOSITION
The judgment is modified to reflect a four-year sentence, stayed
pursuant to section 654, on count 2 for Jackson. The superior court is
directed to prepare an amended abstract of judgment and forward it to the
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
26