Appendix — Marshall v. Henry (No. 07-199)

FILED

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07-199AUG13 20, (2) Cel

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES D. MARSHALL, WARDEN, Petitioner,

ROBERT HENRY, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

EDMUND G. BROWN JR.

Attorney General of California

DANE R. GILLETTE

Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy State Solicitor

PEGGY S. RUFFRA

Supervising Deputy Attorney General

Counsel of Record

Suite 11000

455 Golden Gate Avenue

San Francisco, CA 94102-7004

Telephone: (415) 703-1362

Fax: (415) 703-1234

Counsel for Petitioner

BEST AVAILABLE COPY

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APPENDIX INDEX

Memorandum Opinion by Ninth Circuit Court of

Appeals, filed March 12, 2007

Order Denying Rehearing and Rehearing En Banc

by Ninth Circuit Court of Appeals, filed May 16, 2007

Tentative Order Denying Petition For Writ Of

Habeas Corpus by United States District Court

for the Eastern District of California,

filed January 25, 2005

Opinion Affirming Judgment of Conviction by

California Court of Appeal, filed September 21, 1988

Docket, Case No. $056606, Showing Denial

of Petition for Writ of Habeas Corpus by

California Supreme Court, filed January 28, 1997

Order Denying Writ of Habeas Corpus by

California Supreme Court, Case No. S010192,

filed June 8, 1989

Docket, Case No. $007648, Showing Denial of

Petition for Review by California Supreme Court,

filed December 22, 1988

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IN THE SUPREME COURT OF THE UNITED STATES

No.

CHARLES D. MARSHALL, WARDEN, Petitioner,

ROBERT HENRY, Respondent.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT HENRY, No. 05-16947

Petitioner - Appellant, D.C. No. CV-94-00916-JKS

MEMORANDUM*

CHARLES D. MARSHALL,

Respondent - Appellee.

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Ant ae )

Appeal from the United States District Court

for the Eastern District of California

James K. Singleton, Chief Distnct Judge, Presiding

Argued and Submitted December 4, 2006

San Francisco, California

Filed March 12, 2007

2a

Before: NOONAN, HAWKINS, and THOMAS, Circuit

Judges.

Robert Henry appeals the district court’s denial of his petition

for habeas corpus. We affirm as to the issue of his Doyle

rights“ but remand to the district court for an evidentiary

hearing on the uncertified issue of actual innocence. Because

the parties are familiar with facts and the procedural history, we

will not recount it here.

The substantive provisions of AEDPA do not apply to this

case. Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001).

Under pre-AEDPA habeas review, we presume the correctness

of state court factual findings unless the record does not support

the findings, or unless other defects, not at issue here, are

present. 28 U.S.C. § 2254(d); Kuhlmann y. Wilson, 477 U.S.

436, 459-60 (1986); McKenzie v. Risley, 842 F.2d 1525, 1531

(9th Cir. 1988) (en banc). Under pre-AEDPA law, we review

questions of law and mixed questions of law and fact de novo,

owing no deference to a state court’s legal conclusions.

Williams v. Taylor, 529 U.S. 362, 400 (2000) (O’Connor, J.,

concurring) (explaining pre-AEDPA standard of review).

I]

Henry’s voluntary statements to Officer Bawart waived his

right to remain silent. United States v. Pino-Noriega, 189 F.3d

1089, 1098 (9th Cir. 1999); United States v. Ochoa-Sanchez,

676 F.2d 1283, 1286 (9th Cir. 1982). As in Pino-Noriega, there

“is nothing in the record to indicate that [Henry’s] momentary

silence was intended to be a reinvocation of his nghts.” Pino-

Noriega, 189 F.3d at 1098. See also United States v. Lorenzo,

1. Doyle v. Ohw, 426 US. 610 (1976).

3a

570 F.2d 294, 298 (9th Cir. 1978). Moreover, because Henry’s

statement about the agreed-upon price, and silence as to the

contract’s purpose, were “arguably inconsistent” with his

defense asserted at trial, they may be used to question that

defense. United States v. Makhlouta, 790 F.2d 1400, 1404 (9th

Cir. 1986). See also United States v. Hoac, 990 F.2d 1099,

1103-04 (9th Cir. 1993) (defendant’s failure to state at arrest

that he was an “innocent dupe” was “arguably inconsistent”

with the defense presented by his attorney at trial). As a result,

Henry’s due process rights were not violated by the prosecutor’s

statements or the jury instruction.

[if

Ninth Circuit Rule 22-1(e) permits habeas petitioners to brief

uncertified issues using separate headings distinguishing the

certified from the uncertified issues. Schardt v. Payne, 414 F.3d

1025, 1032 (9th Cir. 2005). ‘Under this rule, we construe such

briefing as a request for an expanded COA,” id., and we may

grant the COA if the petitioner has made a substantial showing

of the denial of a constitutional right. Hivala v. Wood, 195 F.3d

1098, 1104 (9th Cir. 1999). We do so here with regard to

Henry’s actual innocence claim, but decline to grant a COA to

Henry’s sufficiency of the evidence claim.

Henry seeks an evidentiary hearing on his actual innocence

claim. Habeas petitioners must meet “a reasonably low

threshold” in order to receive an evidentiary hearing, showing

only a colorable claim for relief and the lack of a factual finding

below. Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001).

Here there is no evidence in the record that Henry received an

evidentiary hearing in state court to allow the state court to find

facts relevant to the newly-discovered evidence. Henry is

entitled to an evidentiary hearing in the district court because if

the newly-discovered evidence proves to be true, he would have

made out a valid freestanding claim of actual innocence by

‘affirmatively prov[ing] that he is probably innocent.” Carriger

v. Stewart, 132 F.3d 463, 476 (9" Cir. 1997); Herrera v.

Collins, 506 U.S. 390, 417-19 (1993). If truthful, the testimony

of Jeffrey Taggart and Charles Austin would prove that Henry,

while possibly guilty of solicitation, conspiracy, and attempt for

hiring a hit man, is not guilty of first degree murder. We

therefore remand to the district court to hold an evidentiary

hearing. Each party shall bear its own costs on appeal.

AFFIRMED IN PART AND REVERSED IN PART.

REMANDED.

*This disposition is not appropriate for publication and is not

precedent except as provided by 9" Cir.R. 36-3.

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Filed May 16, 2007

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT HENRY, ) No. 05-16947

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Petitioner - Appellant, ) D.C. No. CV-94-00916-JKS

ORDER

CHARLES D. MARSHALL,

Respondent - Appellee.

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Before: NOONAN, HAWKINS, and THOMAS, Circuit

Judges.

The panel has voted to deny the petition for rehearing and to

reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc, and no judge of the court has requested a

vote on the suggestion for rehearing en banc. Fed.R.App.P.

35(b).

The petition for rehearing is denied and the suggestion for

rehearing en banc 1s rejected.

6a

Filed 01/25/2005

IN THE UNITED STATES DISTRICT COUR]

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT HENRY ) Case No. CIV-S-94-0916 (JKS)

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Petitioner ) TENTATIVE ORDER

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VS. )

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CHARLES D. MARSHALL, )

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Respondent. )

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Robert Henry was convicted in California state court of first-

degree murder with special circumstances and sentenced to life

imprisonment without the possibility of parole. He exhausted

his state judicial remedies and brings this action in federal

habeas corpus. 28 U.S.C § 2254. The Court has carefully

considered the record and, finding no constitutional error, will

deny the petition for habeas corpus.

BACKGROUND

The following facts are taken from the opinion of the

California Court of Appeal. The State’s theory of the case was

that Robert Henry hired Francis Lee Brewer to kill Cedric

Turner, whom Henry believed had engineered a robbery of

Henry. In attempting to carry out his contract to kill Turner,

Brewer mistakenly shot and killed Andre Johnson. The

prosecution therefore proceeded on a theory of transferred

intent.

7a

Following the robbery of Henry, Henry and two relatives,

Jeffrey Taggert and Jester Taggert, met at Henry’s house to

discuss retaliation. After Henry recounted his tale of having

been robbed at gunpoint, the three decided to shoot Turmer. In

order to carry out the plan, Henry met with Bernard Oden and

Oden’s friend Brewer. At the meeting, Henry told Brewer that

Turner had robbed him of $400 and offered Brewer two

‘‘Hubbas” (slang for crack cocaine) to give Turmer “‘a good ass

whipping.” According to the Court of Appeal, Brewer fully

understood the true meaning of appellant’s request, 1.e., to kill

Turner. Brewer immediately went to his girlfriend’s house to

pick up a .22 caliber sawed-off nfle and ammunition, loaded the

gun, placed it in the blue plymouth he had stolen earlicr, and

drove to Gateway Drive, the prearranged place for the shooting.

At 6:00 p.m. Henry and a relative accosted Turner on

Gateway Drive and told Turner that they were going “to take

him out,” and that he “was gonna die.”” Henry and his relative

then left to meet a second relative and then the three all armed

with guns returned to Gateway Drive. Henry confronted Turner

a second time, repeating his threat that Turner was going to die.

Turner retreated to a nearby driveway. One of Henry’s

relatives, in Henry’s presence, warned the gathering crowd to

disperse because “somebody’s going to get shot.”

Turner fled into a nearby house where he met Andre Johnson.

Johnson persuaded Turner to leave saying, “come on, we'll

handle it.” Johnson offered Turner a ride to Turner’s home, and

Turner accepted. They left the residence together. Turner

entered Johnson’s vehicle and sat in the front passenger sear. In

the meantime, Johnson and Henry engaged in a shouting match

and began to pushing each other. Johnson deprecated Henry’s

coiffure.

Meanwhile, Brewer and Oden arrived at the scene in the blue

plymouth and parked in front of Johnson’s car. Brewer got out

of the car and stood on the sidewalk observing the argument

between Henry and Johnson. Henry walked up to Brewer and

pointed out Turner to him saying, “that 1s the guy.”

8a

Thereafter, Brewer, with Oden sitting in the front passenger

seat, drove down the street, made a U-turn, and stopped in the

middle of the street next to Johnson’s car. As one of Henry’s

relatives shouted “‘watch out, he is gonna shoot,” Brewer leaned

across Oden and fired numerous shots out of the passenger

window of the car, hitting and killing Johnson who was

standing approximately 5 to 10 feet away. In the view of the

appellate court, the evidence overwhelmingly demonstrates that

at the time of the shooting, Johnson was reaching for the door

of his automobile and was facing toward the crowd in the street

rather than toward the car from which the shots were coming.

After the shooting, Brewer disposed of the murder weapon,

wiped the fingerprints off the blue plymouth, and abandoned the

car. Then, accompanied by Oden, he returned to the crime

scene to ascertain if the victim had been shot. As a next step,

Brewer, Oden, and a third man went to Henry’s house on

Sawyer street. Brewer and Henry discussed the shooting and

Brewer assured Henry that he did not have to worry anymore

because he (Brewer) had taken care of the job. Henry told

Brewer that he was willing to pay him, but wished to negotiate

the price because the wrong person was shot. They agreed that

the price would be reduced from $200 to $100. The Court of

Appeal found this version of the facts corroborated by Henry’s

statements to Detective Bawart after Henry’s arrest that he,

‘hired Lee Brewer to kill Cedric Turner. He killed the wrong

guy. | can’t understand why | am being charged.”

SCOPE OF REVIEW

Henry filed his ongirial petition for habeas corpus in federal

court on June 2, 1994. Thereafter, he amended his petition on

May 20, 1996. The Anti-Terrorism and Effective Death Penalty

Act (AEDPA) was enacted on Apml 24, 1996. A petition filed

in district court on or before April 24, 1996, is controlled by

pre-AEDPA law. See Lindh v. Murphy, $21 U.S. 320 (1997).

This is true even when a habeas petition is amended after April

9a

24, 1996. See Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.

2001) (treating amended petition filed after AEDPA’s

enactment as part of earlier, pre-AEDPA petition and applying

pre-AEDPA law); Keating v. Hood, 191 F.3d 1053, 1060-61 &

n. 7 (9th Cir. 1999) (finding that where petitioner originally

filed pre-AEDPA and then amended the petition post AEDPA,

pre-AEDPA law governed), cert. denied, 531 U.S. 824 (2000),

overruled on other grounds by Payton v. Woodford, 346 F.3d

1204 (9th Cir. 2003); Fuller v. Johnson, 158 F.3d 903, 905 (Sth

Cir. 1998) cert. denied, 526 U.S. 1133 (1999); Johnson vy.

United States, 196 F.3d 802, 805-06 (7th Cir. 1999). Under pre-

AEDPA law, a federal habeas court is “limited to deciding

whether a conviction violated the Constitution, laws, or treaties

of the United States.” Estelle v. McGuire, 502 U.S. 62, 68

(1991).

DISCUSSION

This matter was referred to a United States Magistrate Judge.

The magistrate filed findings and recommendations, which

Judge Damrell adopted. Docket No. 73. These determinations

became the law of the case, which this Court may only modify

if there has been, (1) an intervening change in the law; (2) an

intervening change in the facts; or (3) an intervening

determination that the earlier decision was inconsistent with

controlling authority from the Untied States Supreme Court or

the Ninth Circuit Court of Appeals that existed at the time, but

that was overlooked by court and counsel. See Delta Savings

Bank v. United States, 265 F.3d 1017, 1027 (9th Cir. 2001),

cert. denied sub nom., Kim v. United States, 534 U.S. 1082

(2002). A number of years have passed since Judge Damrell

adopted the magistrate’s findings and recommendations.

During that time the law has evolved in some significant areas.

Where it has evolved, the change in the law will be referenced

in the following decision.

Henry advances four claims. First, he argues that the

10a

evidence presented at the trial of Brewer, subsequent to his own

trial, resulted in an inconsistent verdict, entitling him to a new

trial. Second, Henry asserts that his Fifth Amendment rights

were violated by the prosecutor when the prosecutor pointed out

at trial that Henry had not denied involvement in his statement

to the police and procured a jury instruction on adoptive

admissions from silence in the face of accusations. Next, he

contends that there was insufficient evidence to prove that he

hired Brewer to kill Turner, rather than just to assault him.

Finally, Henry submits that he was prejudiced when the

prosecutor misstated the evidence. These arguments will be

addressed in turn.

I. Evidence Presented At Brewer’s Subsequent Trial

Three men were tried as accomplices in the murder of

Johnson. Henry was tried first, on the theory that he had hired

Brewer to kill Turner, and that Brewer had fired at Turner and

killed Johnson in error. The jury accepted this theory, and

convicted Henry of first-degree murder. The trial judge found

the special circumstances of murder for profit and use of a

firearm. Taggert, Henry’s cousin, went to trial ten days later

and was convicted of second-degree murder for which he

received an eight year prison sentence. Two years later Brewer

was tried. It appears that Brewer was tried on the same theory

that the prosecution followed in trying Henry—that Brewer was

hired by Henry to kill Turner, but mistakenly killed Johnson.

The jury found Brewer guilty of second- degree murder and

specifically rejected enhancements for personal use of a firearm

and a financial motive. Henry interprets the evidence at

Brewer’s trial as establishing that Oden, not Brewer, was the

shooter. He argues that Oden had no involvement in any

murder for hire and that the shooting of Johnson therefore was

unrelated to any quarrel between Henry and Turner. Henry

points out that the second jury’s failure to find either a firearm

enhancement or a financial motive is new evidence that at least

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raises a reasonable doubt regarding his culpability.

Henry contends that two decisions of the United States

Supreme Court, Herrera v. Collins, 506 U.S. 390 (1993), and

Schlup v. Delo, 513 U.S. 298 (1995), allow a federal court in

habeas to entertain an untimely motion for new trial based on

newly discovered evidence, i.e., a stand alone claim of “actual

innocence” based on newly discovered evidence. Both of the

cases Henry points to are capital cases. In Henry’s case, the

prosecutor made it clear from the outset that the death penalty

would not be sought. Henry argues, however, that it is

unreasonable to permit federal review where the penalty is

death, and deny it where the penalty is life imprisonment

without the possibility of parole. He notes that he was 19 years

old at the time of his conviction and of limited intelligence. For

purposes of this case the Court will assume that the

Herrera/Schlup rules apply to non-capital cases. See, e.g.,

Sistrunk v. Armenakis, 292 F.3d 669, 673 n. 3 (9th Cir. 2002)

(assuming arguendo that Schlup applies to non-capital cases).

Schlup addresses a claim of actual innocence as a predicate

for asserting a defaulted constitutional claim in a successive or

abuse habeas petition. A Schlup actual innocence claim 1s

procedural——a means of obtaining the court’s attention to a

defaulted claim where the petitioner cannot show cause plus

prejudice and excuse the default. See McCleskey v. Zant, 499

U.S. 467, 487 (1991). A majority of the Court in Schlup

concluded that a sufficient showing of actual innocence could

substitute for a showing of cause plus prejudice, and excuse a

prior procedural default allowing a federal court to consider a

second habeas petition. The Sch/up Court then addressed the

showing that a petitioner would have to meet in order to pass

through this procedural ‘‘gateway” and obtain consideration of

his defaulted constitutional claims. In Schlup the Court

considered whether the petitioner’s burden of proof was the one

established in Sawyer v. Whitley, 50S U.S. 333 (1992), or that

announced in Murray v. Carrier, 477 U.S. 478 (1986). In

Sawyer, the Court found that it must be shown by clear and

convincing evidence that but for a constitutional error no

reasonable juror would have found the petitioner eligible for the

death penalty. In Murray, the Court established that a petitioner

must show that it is more likely than not that no reasonable juror

would have convicted him in light of the newly discovered

evidence. The Schlup Court distinguished a third standard

articulated in Jackson v. Virginia, 443 U.S. 307 (1979)

(questioning whether, in light of the evidence, any rational juror

could have found the defendant guilty beyond reasonable

doubt). Under the Schlup standard, a federal trial judge must

consider the credibility of witnesses who testified at trial and

whose affidavits provide the alleged newly discovered evidence.

In contrast under the Jackson standard the reviewing court does

not make credibility determinations. Further, under Jackson the

focus is on the whether the jury “could” find guilt beyond

reasonable doubt. Under Carrier, the use of the word “would”

focuses the inquiry on the likely behavior of a hypothetical tner

of fact. Under both Sawyer and Carrier the Court concluded

that a petitioner’s showing of innocence is not insufficient

solely because the trial record contained sufficient evidence to

support a jury’s verdict. Schlup, $13 U.S. at 331-32.

In contrast to Schlup, Herrera presents a substantive, or

stand-alone claim. The claim is considered independently and

not a justification for excusing prior procedural defaults. The

petitioner does not claim innocence in order to avoid a

procedural default so that he may argue separate constitutional

claims. Rather, he seeks relief solely on the basis of his claim

of innocence. While the precise standard has not been

developed to the point that the Sch/up standard has, it is clear

that the hurdle a petitioner must cross is much higher than that

required to avoid a procedural default. The Ninth Circuit has

interpreted Herrera as requiring a petitioner to affirmatively

prove his innocence-—-not just raise doubts about his guilt in

order to prevail on a stand-alone claim. Carriger v. Stewart,

132 F.3d 463, 476-77 (9th Cir. 1997) (en banc), cert. denied,

537 U.S. 1133 (1998).

13a

In this case Henry has four claims, but none of them was

procedurally defaulted. He thus does not need to pass through

the Schlup gateway to assert any of his claims. Consequently,

his actual innocence claim must be viewed under the

Herrera/Carriger standard. It is clear that Henry cannot meet

that standard. His admission to officer Bawart is fatal to this

claim. Bawart testified that Henry told him, “I hired Lee

Brewer to kill Cedric Turner. He killed the wrong guy. I can’t

understand why I am being charged.”” Henry seeks to avoid this

result by arguing that Bawart is hard of hearing, that Henry is

soft spoken, and that what Henry really said was, “[i]f I had

hired Francis Brewer to kill Cedric Turner, and he got the wrong

guy, | don’t know why I am being charged.” Docket No. 39,

Ex. B at 5 (Decl. of Henry). Unfortunately for Henry, his after

the fact explanation is not worthy of belief. Henry’s recorded

interview was presented to the jury to corroborate Bawart’s

testimony regarding Henry’s admissions. See Doe v. Menefee,

391 F.3d 147, 164-65 (2d Cir. 2004) (reversing a district court’s

finding that testimony of the defendant and other witnesses

constituted reliable evidence of actual innocence as clearly

erroneous in light of the defendant’s prior statements and

admissions). Henry has not affirmatively proved that it is more

probable than not that he was not an accomplice to the murder

of Johnson under the theory of transferred intent. The belated

testimony of Taggert, Henry’s brother, and Charles Austin, a

convicted felon, do not persuade the Court that Henry is

probably innocent.

The State correctly points to a number of cases in which

the Supreme Court and the Ninth Circuit have held that

inconsistency between verdicts does not create due process

problems. See, e.g., United States v. Powell, 469 U.S. 57

(1984); Dunn v. United States, 284 U.S. 390 (1932); United

States v. Hart, 963 F.2d 1278 (9th Cir. 1992). Since Henry was

tried first, there are no collateral estoppel or res judicata

problems from any inconsistent findings by the jury that tned

Brewer two years later. See, e.g., Ashe v. Swenson, 397 US.

l4a

436 (1970) (discussing possible res judicata effects of

inconsistent verdicts). It is true that some courts have

distinguished Powell by shifting attention from the verdicts

reached by sequential juries, and the prosecutor’s knowledge

and intent in trying more than one person for acts against a

single victim. These cases appear related to decisions that

invoke judicial estoppel to prevent a litigant from arguing one

theory to a forum and obtaining a favorable result and then

arguing an inconsistent theory to an alternate forum. See, e.z.,

Russell v. Rolfs, 893 F.2d 1033, 1036-37 (9th Cir. 1990).

A number of courts have found a due process error

cognizable in federal habeas corpus where a state prosecutor

uses inconsistent theories, arguments, and evidence to prosecute

co-defendants in separate trials for the same crime. See, e.g.,

Jacobs v. Scott, 513 U.S. 1067 (1995) (Mem.) (Stevens and

Ginsburg, JJ, dissenting from denial of certiorari); Nguyen v.

Lindsey, 232 F.3d 1236 (9th Cir. 2000); Shaw v. Terhune, 353

F.3d 697 (9th Cir. 2003), opinion amended and superceded by

380 F.3d 473 (9th Cir. 2004). There is support for this

proposition in other circuits as well. See, e.g., Stumpf v.

Mitchell, 367 F.3d 594 (6th Cir. 2004) cert. granted, 2005 WL

32977 (U.S. January 7, 2005); Smith v. Groose, 205 F.3d 1045

(Sth Cir. 2000). There is also opposing authority. See Nichols

v. Scott, 69 F.3d 1255 (Sth Cir. 1995); Jacobs v. Scott, 31 F.3d

1319 (Sth Cir. 1994); see also United States v. Paul, 2\7 F.3d

989, 998-99 (8th Cir. 2000) (precluding inconsistent evidence

but allowing inconsistent arguments or theories).

Nguyen and Shaw are post-AEDPA cases that provide

little support for Henry. The prosecutor tried first. The theory

of transferred intent was the same in both cases and the same

enhancements were argued. The evidence presented by the

prosecutor was essentially the same, though new witnesses were

called by the defense. If there is inconsistency it is in the

respective jury verdicts, not in the prosecution’s theory of the

case. Under the circumstances there was no due process

violation or was there a proper basis for invoking judicial

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estoppel.

Il. Adoptive Admissions From Silence In The Face Of

Accusations And the Right To Remain Silent

It does not appear that Henry objected at trial to the

prosecutor’s statements in argument. Nor does it appear that

Henry objected to the jury instruction on adoptive admissions

that he challenges in this proceeding. Had this matter occurred

in federal court, Henry would need to show plain error in order

to prevail.

Henry did not testify at his trial. During the course of the

trial, a detailed statement from Henry in the form of questions

put to him by police officers and his answers was presented to

the jury. The statement was in large part recorded and a

transcript was prepared. In addition to the recorded statement,

Officer Bawart testified that after the tape recorder was turned

off, and Henry was informed that he was going to be booked for

murder, Henry remarked, “I hired Lee Brewer to kill Cedric

Turner. He killed the wrong guy. I can’t understand why I’m

being charged.” Vol. Ill, Ex. B, Part 2 at 405. Officer Ronald

Becker, who was also present, confirmed this testimony 1n part.

He testified that Henry said, “He couldn’t under stand why he

was going to jail for murder because the guy he had hired had

shot the wrong person.” In closing argument defense counsel

stressed that the alleged admission did not occur during the part

of the interrogation that was recorded and argued that Becker’s

recollection was probably more accurate than Bawart’s because

Bawart was hard of hearing and his notes, which quoted the

statement, referred to it as similar to what Henry said and not

almost verbatim, as Bawart had testified at trial. Defense

counsel tried to persuade the jury that what Henry had really

meant, consistent with the defense theory of the case, was that

he had hired Brewer to beat up Turner, and Brewer (or Oden)

had shot Johnson. In his final rebuttal argument the prosecutor

addressed this issue as follows:

16a

Last but not least, of course, is the Defendant’s statement.

You’ve got it on tape, and | want you to listen to it. I

won't tell you everything about it, but there’s things the

court will tell you.

One of those things is, if you are confronted with the facts

that you have committed a cnme, and you sit there and

don’t say, “Hey, I didn’t do it” you can take that into

consideration; if you sit there and kind of mealy-mouth

around and don’t really answer questions and this number

(demonstrating) all that can be taken into account in

deciding whether or not how much emphasis you’ll place

on that particular statement that he gives the police, and

whether or not there’s a confession of guilt, whether or not

when you run away to Richmond to leave the scene that’s

consciousness of guilt. That is up to you.

Id. at 516. The prosecutor then referred to the following

portion of the recorded interrogation:

Bawart: so you offered him $200 to shoot Ced?

Henry: No.

Bawart: That’s a lie.

Henry: | didn’t offer hm $200.

Bawart: How much did you offer him?

Henry: | offered him $50.

Id. at 517. After referring to this portion of the tape, the

prosecutor continued:

Well Ladies and Gentlemen, when you listen to that tape,

its there, and I want you to listen to it. He’s not upset over

the fact the officer is saying ‘You hired this man to shoot

somebody.’ He’s upset because he didn’t offer him $200,

he offered him $50... .[U]se common sense. If you were

in that situation, you’re being accused of a crime, you’re

being accused of murdering somebody or being involved

17a

in murdering somebody, wouldn’t you say, “Hey, I didn’t

contract to shoot him,” or would you be worned about how

much you were going to pay him unless you had this

contract and you were going to pay him... . I'll tell you

this, basically. The defense argument is, ignore what the

defendant told the police. He attacks Detective Becker and

Bawart, saying they didn’t write in their report the

argument over “similar” or “verbatim.”” You heard the

detective’s testimony. You have seen what was read in the

report. He made the statement which was similar to, “I

hired Lee Brewer to kill Mr. Turner. He killed the wrong

guy. | can’t understand why | am being charged.” The

defense attorney wants you to ignore that tape and

statement. I submit to you, that statement alone is enough

to convict the Defendant as charged.

Id. at 518.

Shortly thereafter the jury was carefully instructed regarding

alleged confessions and admissions by Henry and that it could

consider an inference of consciousness of guilt from flight in

order to avoid prosecution. /d. at 528. Among the instructions

was the following:

If you should find from the evidence that there was an

occasion when the Defendant, under conditions which

reasonably afforded him an opportunity to reply, failed to

make a denial or made false, evasive, or contradictory

statements in the face of an accusation expressly directed

to him or in his presence charging him with the crime for

which he is now on tnal or tending to connect him with its

commission, and if you should find that he heard the

accusation and understood its nature, the circumstances of

his silence or conduct on that occasion may be considered

against him as indicating an admission that the accusation

thus made was truc.

Evidence of such an accusatory statement 1s not received

18a

for the purpose of proving its truth, but only as it supplies

meaning to the silence and conduct of the accused in the

fact of it; and unless you should find that his conduct at the

time indicated an admission that the accusatory statement

was true, you should entirely disregard the statement.

Id at 529.

Henry argues that the prosecutor’s statement constituted a

comment on Henry’s decision to invoke his Fifth Amendment

rights. The Fifth Amendment provides that “[nJo person...

shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. The government may not

burden this right by commenting before the jury on a

defendant’s election not to testify. Griffin v. California, 380

U.S. 609 (1965); see also Mitchell v. United States, 526 U.S.

314 (1999) (extending Griffin to sentencing). The Supreme

Court has held that there is an implicit promise in the Miranda

warnings that silence will not be used against a defendant and

a defendant is denied due process when a prosecutor secks to

impeach a defendant’s exculpatory story at trial with post-arrest,

post-Miranda warning silence. Doyle v. Ohio, 426 U.S. 610

(1976). In Doyle, the Court reasoned that the Miranda warnings

may have induced the defendant to remain silent. In the absence

of Miranda warmings there can be no inducement. A prosecutor

may rely on pre-arrest silence for impeachment, Jenkins v.

Anderson, 447 U.S. 231, 238-39 (1980), and post-arrest pre-

Miranda silence for impeachment, fletcher v. Weir, 455 U.S.

603, 607 (1982).

Jenkins and Fletcher are inapplicable to this case because

Henry received Miranda warnings, apparently waived them, and

gave a fairly complete statement. His case more closely

resembles Anderson v. Charles, 447 U.S. 404 (1980). In

Anderson the Supreme Court held that where Miranda warnings

are given and waived, and a defendant makes a statement and

then testifies to an arguably inconsistent version of the facts at

trial, he may be impeached not only with what he said in his

a

19a

post-Miranda statement but with what he failed to say. See also

United States v. Pino-Noriega, 189 F.3d 1089 (9th Cir. 1999);

United States v. Hoac, 990 F.2d 1099, 1004 (9th Cir. 1993);

United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir.

1986); United States v. Ochoa-Sanchez, 676 F.2d 1283, 1286

(9th Cir. 1982).

A fair reading of the prosecutor’s rebuttal argument

indicates that he was responding to defense counsel’s attack on

Bawart’s testimony regarding Henry’s admission. The

prosecutor was also attempting to show that Henry’s recorded

answers to Bawart’s questions corroborated Bawart’s testimony

regarding the alleged admission that was not recorded. It is true

that a number of the cases permitting a prosecutor’s use of

omissions in a defendant’s post-Miranda, post-arrest statements

for impeachment involve situations where a defendant testifies

to an inconsistent exculpatory story. The Ninth Circuit has

expanded the exception to the Doy/e rule to include cases like

this one, where a defendant does not testify, but the defense

presented by his attorney is inconsistent with the defendant’s

pretrial post Miranda statements. Hoac, 990 F.2d at 1104

(stating that the Charles exception to the Doyle rule applies

even when a defendant does not testify at trial) (citing Anderson

v. Charles, 447 U.S. 404 (1980) (per curium), and Klepper v.

United States, 331 F.2d 694, 701 (9th Cir. 1964)). Here, the

prosecutor did not impermissibly comment on Henry’s exercise

of his Fifth Amendment nghts.

Henry points out that in addition to the prosecutor’s

rebuttal argument, the jury was instructed on admissions by

silence, or adoptive admissions. The instruction is set out

above. The final sentence of the instruction 1s problematical in

a case where the alleged adoptive admissions occurred during

interrogation by police officers. The final sentence reads, “if

you should find that [Henry] heard the accusation and

understood its nature, the circumstances of his silence and

conduct on that occasion may be considered against him as

indicating an admission that the accusation thus made was truce.”

20a

Vol. Ill, Ex. B, Part 2 at 529.

It is arguable that the Charles exception to Doyle only

applies where questions to the defendant are “not designed to

draw meaning from silence, but to elicit an explanation for a

prior inconsistent statement.” Charles, 447 U.S. at 409. To use

silence in response to interrogation as substantive evidence as

the instruction suggests may put an impermissible burden on the

exercise of constitutional rights. It is not necessary to pursuc

this issue further, however, for even if error occurred it was

harmless beyond reasonable doubt. The only mention that the

prosecutor made of the instruction was in conjunction with his

argument tying Henry’s recorded admissions to the alleged

unrecorded admission to which Bawart testified. Any error in

giving the adoptive admissions instructions did not have a

substantial and injurious effect or influence on the jury’s

verdict. See Brecht v. Abrahamson, 507 U.S. 619 (1993).

Ili. Sufficiency Of The Evidence

Henry argues that while there was substantial evidence that

he hired Brewer to assault Turner, there was no evidence that he

paid Brewer to kill Turner. The evidence of Henry’s contract

with Brewer must be considered in context with Henry’s

admissions to the police. These admissions provide substantial

evidence from which a reasonable jury could find guilt beyond

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307

(1979).

IV. Prejudicial Error

Henry argues that the prosecutor committed prejudicial

error when he speculated that Henry and Brewer modified their

agreement to substitute $200 for the quantity of cocaine

originally promised in return for an assault on Turner. The

comment did not draw an objection. Defense trial counsel}

obviously felt that the comment was within the range of the

21a

evidence. See United States v. Gray, 876 F.2d 1411, 1417 (9th

Cir. 1989) cert. denied, 495 U.S. 930 (1990). A prosecutor’s

improper remarks do not by themselves violate a defendant’s

constitutional rights; they only do so when they render the

proceedings fundamentally unfair. Jeffries v. Blodgett, 5 F.3d

1180, 1191 (9th Cir. 1993), cert denied, 510 U.S. 1191 (1994);

Davis v. Woodford, 384 F.3d 628, 644 (9th Cir. 2004) (quoting

Darden v. Wainwright, 477 U.S. 168 (1986)). Henry’s claim

does not satisfy this test.

If IS THEREFORE TENTATIVELY ORDERED:

A decision in this case has been delayed a long time. while

this case has been pending numerous decisions of the Ninth

Circuit and United States Supreme Court have been reached.

This decision will stand as the tentative decision on Henry’s

application for habeas corpus at docket no. 39. Either party may

file a legal memorandum responding to this tentative decision

on or before Monday, April 4, 2005. the opportunity to file a

supplemental brief shall be in lieu of oral argument. The Court

will promptly reach a final decision after the time for

supplemental briefing has expired.

Robert Henry’s motion for post conviction relief, 28 U.S.C.

§ 2254 is TENTATIVELY DENIED. The clerk will be

instructed to prepare a judgment dismissing this claim with

prejudice. Although Henry’s petition was filed pre-AEDPA, the

United States Supreme Court has held that AEDPA’s provisions

regarding certificates of appealability apply to all cases where

the notice of appeal is filed after AEDPA’s effective date. Slack

v. McDaniel, 529 U.S. 473, 482 (2000); see also Phillips v.

Woodford, 267 F.3d 966, n.2 (9th Cir. 2001). Therefore, the

Court will need to determine whether Henry should be given a

certificate of appealability. 28 U.S.C. § 2253. The Court is

satisfied that reasonable jurists would not disagree regarding the

merits of Henry’s claims 1, 3 and 4. No certificate shall issue

as to those claims. Henry’s second claim presents a closer

question. The Court will therefore issue a certificate of

ho

ho

2

appealability as to the question of whether the prosecutor’s

discussion of Henry’s statement to the police and the instruction

on adoptive admissions denied Henry due process of law and

prejudiced him under the Brecht standard.

Dated at Anchorage, Alaska, this 24 day of January 2005S.

s/

JAMES K. SINGLETON, JR.

United States District Judge

23a

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, )

) A035447

Plaintiff and Respondent, )

) (Super. Ct. No. 19726

V ) County of Solano)

)

ROBERT HENRY, )

)

Defendant and Appellant. )

)

Defendant Robert Henry (appellant) appeals a judgment

imposing life without the possibility of parole following his

conviction for first degree murder with special circumstances.

I. FACTS

The conviction at bench grew out of the killing of Andre

Johnson who was shot from a passing car driven by Francis Lee

Brewer (Brewer), a hired killer. The murder took place on

Thanksgiving Day, 1985, in the vicinity of Country Club Crest

in northern Vallejo and involved numerous members of the

Henry and Taggart families, including appellant, his brothers

Gary and John Henry, Jeffrey Taggart, and his cousins, Jester

and Alex Taggart (hereafter; Jeffrey, Jester and Alcx,

respectively). Stated most favorably to respondent as it must

24a

(People v. Johnson (1980) 26 Cal.3d 557, 576; People v.

Mosher (1969) | Cal.3d 379, 395, disapproved on other grounds

in People v. Ray (1975) 14 Cal.3d 20,30-31) the evidence

reveals the following scenario.

At about 3 a.m. on November 28, 1985, Cedric Turner, the

intended victim of the crime (hereafter: Turner), stood at the

corner of Gateway and Rounds Streets in the Country Club

Crest area in Vallejo. Wyatt Shellmon came along in his car

and asked Turner if he could get some “base rocks’ for him.

After a yes answer, Shellmon picked up Turner and drove him

to Sawyer Street to contact appellant who was selling cocaine.

Moments later, appellant got into Shellmon’s car, All three

were heading towards the end of an isolated cul-de-sac in a

remote area of the city. Shellmon suddenly stopped, pulled a

gun and pointing it at appellant said, “Give me everything you

have or I’ll blow your head off.” Appellant complied by giving

up $30 in cash and some cocaine. Shellmon then ordered

appellant out of the car and shortly thereafter dropped off

Turner as well.

Following the robbery, appellant, Jeffrey and Jester met at

appellant’s house to discuss retaliation against Turner. After

hearing appellant’s recount that Turner had robbed him by

putting a gun at his head, they unanimously decided to shoot

(get) Turner.

For the apparent purpose of carrying out the plan, appellant

during late afternoon arranged a meeting with Bernard Oden and

the latter's friend, Brewer. At the mecting which took place in

his house, appellant complained that he had been robbed of

$400 at gunpoint and offered two “hubbas” (rock cocaine) to

Brewcr to give Turner “a good ass whipping.” Brewer fully

understood the true meaning of appellant’s request.

Immediately following the discussion, Brewer went to his

girlfriend’s house on Stella Street, picked up a .22 caliber

sawed-off rifle and ammunition, loaded the gun with bullets,

2. “Base rock” is a street term for cocaine

25a

placed it in the blue Plymouth he had stolen earlier and took off

to Gateway Drive, the scene of the shooting.

Around 6 p.m. that evening, appellant and Jester confronted

Turner on Gateway Drive and told him they were going to “take

him out” and he “was gonna die.” The duo then left and

returned with Jeffrey, all three carrying guns. Appellant came

face to face with Turner and repeated his threat that Turner was

going to die. By now acrowd had gathered and Turner retreated

to the driveway of the Morgan resident at Gateway. Jester, with

appellant standing close by, urged the crowd to move because

“somebody’s going to get shot.”

Turner fled inside the house. Andre Johnson was also there

and after listening to Turner’s description of what was going on

said: “Come on, we’ll handle it” and offered to give Turner a

ride home. They walked outside together. As Turner walked

over to Johnson’s car and occupied the front passenger seat, the

crowd asked Johnson why he was helping Turner, instead of

letting him fight his own battles. Johnson threatened them back

shouting that he and his brother would come back and tear up

the place. Simultaneously Johnson and appellant were yelling

and pushing each other; Johnson called appellant “wave set” an

obvious slur on appellant’s permed hair.

Meanwhile, Brewer and Oden arrived at the scene in the blue

Plymouth and parked in front of Johnson’s car. Brewer got out

of the car and stood on the sidewalk observing the argument

between appellani and Johnson. Appellant walked up to Brewer

and pointed out Turner to him by saying: ““That’s the guy.”

Thereafter, Brewer, with Oden as his passenger sitting in the

front seat, drove down the street, made a U-turn and slowed

down or stopped in the middle of the street next to Johnson’s

car. As Jester yelled “watch out, he’s gonna shoot” Brewer

leaned across Oden and fired numerous shots out of the

passenger window of the car hitting and killing Johnson who

was standing approximately 5 to 10-feet away. The evidence

overwhelmingly demonstrates that at the time of the shooting

Johnson was reaching for the door of his automobile and was

26a

facing toward the crowd in the street rather than the blue car

from which the shots were coming.

After the shooting, Brewer disposed of the murder weapon,

wiped the fingerprints off the blue Plymouth and abandoned the

car. Then, accompanied by Oden, he returned to the crime

scene to ascertain if the victim had been shot. As a next step,

Brewer, Oden and Jeffrey went to appellant’s house on Sawyer

Street. In the ensuing discussion, Brewer assured appellant that

he had taken care of the job and that appellant did not have to

worry any more. Appcllant indicated that he was willing to pay

but added since Brewer had killed the wrong man, the original

price would be reduced in half from $200 to $100.* The fact

that the Johnson killing occurred as a result of an agreement to

kill Turner, was further corroborated by appellant himself. The

record reflects that after his arrest for the Johnson homicide

appellant stated to Detective Bawart: “I hired Lee Brewer to kill

Cedric Turner. He killed the wrong guy. I can’t understand

why I’m being charged.”

The thrust of appellant’s defense was that Brewer killed

Johnson based on an independent motive. Under this

hypothesis, since Brewer did not mistakenly or inadvertently

shoot Johnson while intending to shoot Turner, the doctrine of

transferred intent could not be applied to convict appellant. In

3. The pertinent part of the record reads as follows: “Q. What

happened the second time you’d been there now after the shooting what

took place? [9] A. Just - - Lee told - - Lee Francis [Brewer] told him,

Robert Henry that, uh, he had tooken care of that. [1] Q. And what was

said to him by Mr. Henry? [9%] A. He told him that he didn’t have that

right now, but he could come back later and he would give it to him. [9]

Q. Then what happened? [%| A. Uh, shortly after that, asked exactly what

happened. He said, ‘You don’t have to worry about him no more.’ [4] Q.

Who asked that” [%] A. He asked Lee. [1] Q. When you say ‘he,’ who are

you referring to? [9] A. Robert Henry. [1] Q Asked him what? [4] A.

Exactly what had happened, and Lee told him, replied to him, ‘Well, you

don’t have to worry about him no more....‘” [1] Q. And did they discuss

the payment? ["] A. Yes. They indicated that, because he had hit-shot the

wrong man, that he was only going to pay half of the moneys; instead of

paying $200, he was going to be paid only 100.” (Emphasis added.)

27a

support of this theory a defense criminalist testified that the

angles and the bullet trajectones indicated that Johnson was the

intended target and that he was struck while on the ground or

falling towards the ground. The defense also examined a

psychologist who administered an “1.Q.” test to appellant.

According to his testimony, appellant’s “I.Q.” was at 75 which

constitute borderline mental deficiency.

Based upon the foregoing evidence, appellant was convicted

of first degree murder (Pen Code,* § 187) under the theories of

aider and abettor and transferred intent. The jury found the

special circumstance allegation of intentional murder for

financial gain (§ 190.2, subd. (a)(1)) and the firearm use

allegation (§ 12022, subd. (a)) to be true. Appellant’s motion

for a new trial and/or to dismiss the special circumstance

finding was denied, and he was sentenced to life imprisonment

without possibility of parole.” Appellant raises numerous issues

on appeal which are discussed below.

IY. GUILT PHASE ISSUES

A. Sufficiency of the Evidence

Appellant’s first contention on appeal is that the judgment of

conviction is unsupported by substantial evidence because (a)

the record fails to sustain that he intended to kill Turner, and (2)

the evidence is insufficient to establish that he could reasonably

foresee that Brewer would shoot someone for personal reasons.

We disagree.

Since appellant was not the perpetrator of the killing, his

culpability rests on his status as an aider and abettor. Under

well-settled law, in order to insure criminal liability an aider and

4. Unless otherwise indicated, all statutory references are to the Penal

Code.

5. The district attorney stated at the outset of trial that “they will not

be seeking the death penalty.

28a

abettor must act with knowledge of the criminal purpose of the

perpetrator and with an intent of either committing or

encouraging or facilitating the commission of the offense.

(People v. Yarber (1979) 90 Cal.App.3d 895, 915-916; People

v. Vasquez (1972) 29 Cal.App.3d 81, 87.) As far as the intent

element of the crime goes, the aider and abettor must share the

specific intent of the perpetrator. The shared iatent exists when,

acting with knowledge of the full extent of the perpetrator’s

criminal purpose, the accomplice aids and encourages the

perpetrator with intent of facilitating the crime. (People v.

Beeman (1984) 35 Cal.3d 547, 560.) It is likewise settled that

the liability of an aider and abettor extends also to the natural

and reasonable consequences of the acts he knowingly and

intentionally aids and encourages. (/bid.; People v. Beltran

(1949) 94 Cal.App.2d 197, 207.)

As a further preliminary matter, we also set out the rules

governing the stand of review regarding the sufficiency of the

evidence of a criminal conviction. It is well established that the

appellate court must view the evidence in the light most

favorable to respondent and presume in support of the judgment

the existence of every fact the tricr of fact could reasonably

deduce from the evidence. (People v. Mosher, supra, | Cal.3 at

p. 395.) Ifthe facts reasonably justify the tner of fact’s findings

the opinion of the reviewing court that the circumstances might

also be reasonably reconciled with a contrary finding does not

warrant a reversal of the judgment. (People v. Robillard (1960)

55 Cal.2d 88, 93; People v. Reilly (1970) 3 Cal.3d 421, 425.)

The test on appeal is whether substantial evidence supports the

conclusion of the trier of fact, not whether the evidence proves

guilt beyond a reasonable doubt. (People v. Wright (1985) 39

Cal.3d 576, 591; accord Jackson v. Virginia (1979) 443 US.

307, 319.) As summarized in People v. Johnson, supra, 26

Cal.3d at p. 578, the court must review the whole record in the

light most favorable to the judgment below to determine

whether it discloses such substantial evidence that a reasonable

trier of fact could find the defendant guilty beyond a reasonable

29a

doubt.

In the case at bench there is substantial (if not conclusive)

evidence that appellant intended to kill Turner and that Brewer,

the perpetrator of the crime, carried out the shooting upon a

prior agreement, with the full knowledge and encouragement of

appellant.

Appellant’s intent to kill Turner is demonstrated by a host

of evidence. Following the robbery appellant, Jeffrey and

Jester met in Jeffrey’ s house where they decided to shoot Turner

because of his participation in the holdup. Prior to the afternoon

shootout, there were three confrontations between Turner and

appellant and his friends (Jeffrey and Jester). On all three

occasions appellant and his companions explicitly threatened

Turner with death by repeating that he was going to die and/or

he was going to be taken out.2 At one point they were armed,

but they did not use their weapons because as Jeffrey later told

the police “they had what’s his name to do it, Brewer.”

Furthermore, appellant’s intent to kill Turner as well as his

knowledge and encouragement of the killing are conclusively

6. Excerpts from Turner’s testimony: [f] “Q. Did you have any

problems with anybody on Gateway Drive about that day that time? [4]

A. Yes, I did. [1] Q. Who did you have problems with? [1] It was Robert

Henry, Jester Taggart, Jeffery Henry and Alex Taggart. [1] Q, Where

were you when this first started to occur, this problem?. [9] A. On

Gateway and Rounds Street. [1] Q. Who did you have contact with first?

{1} A. Robert Henry and Jester Taggart. [1%] Q. And did you engage with

them in aconversation? [9%] A. Yes, I was trying to, yeah. [{] Q. And

what did - - what did Mr, Henry tell you? [9] A. He told me that I was

gonna die; he didn’t want to hear it. [1] Q Excuse me. I didn’t hear the

last part. [§) A. He said he didn’t want to hear it, that I was going to die.

{¥] Q. What was he - - did you say something to him? [%] A. Yeah, I told

him I wanted to talk to him. {4} Q. About the incident? [9] A. Yes, I did.

{%] Q And he said he didn’t want to hear it? [9] A. Yes. [9%] Q Did

Jester Taggart say anything to you? [1] A. No, he just kept on saying that

1 was going to die. [1] Q. They both said that to you? (%| Yeah....” [4]

Q. Did they make any threats to you while they had the guns? {{] A. Uh,

yes, they told me that I was going to die. [1] Q. They continued to tell you

that you were going to die? {%} A. Over and over, yes. (1} Q. And who

specifically said that? [9] A. Robert Henry.” (Emphasis added.)

30a

established by his agreement made with Brewer. While Oden

testified that appellant offered rock cocaine to Brewer to give

Turner only a “good ass whipping” the record as a whole,

including appellant’s statement to the police, indicates that the

agreement at issue was in effect a contract for killing.

The above proposition is sustained by a wealth of evidence.

To recall, right after the discussion with appellant, Brewer

picked up ammunition and a rifle and drove to the scene of the

crime. While there, appellant pointed out Turner to him as the

intended victim. After the shootout, Brewer returned to the

scene to ascertain if the victim had been shot. Thereafter, he

met with appellant, advised him that he took care of the problem

and demanded the agreed upon price for the job. Appellant

retorted that Brewer had killed the wrong man and therefore

reduced his fee to half of the agreed amount. Last, but not least,

appellant himself admitted to the police: “I hired Lee Brewer to

kill Cedric Turner.” In light of this record appellant’s

contention that the evidence was insufficient to show his

knowledge of Brewer’s criminal purpose and the requisite

shared intent to encourage and facilitate Brewer’s criminal

objective, is hollow indeed and must be firmly rejected.

Appellant’s argument that the alternative theory of aiding and

abetting is not supported by sufficient evidence inasmuch as he

could not reasonably foresee that Brewer would kill anybody

much less that he could kill a third person, also fails. The

intentional and knowing aiding and promoting Brewer’s

criminal purpose by itself is sufficient to sustain the conviction

and renders the alternative theory of appellant’s criminal

liability inconsequential. Moreover, appellant’s assertion 1s

predicated upon the false premise that the agreement in dispute

called for merely beating up rather than killing Turner and that

appellant was unaware of Brewer’s criminal design to kill. As

discussed above, this premise is unsupported by record.

Furthermore, the liability of an aider and abettor is not limited

to the intended crime, but extends also to the natural and

reasonably foreseeable consequences of any acts he knowingly

31a

and intentionally aids and promotes. (People v. Beeman, supra,

35 Cal.3d at p. 560.) As the agreement at bench called for an

outnght killing rather than just a beating, the shooting with the

resultant death of a human being (including a passerby or other

incidental victim) was entirely foreseeable.

B. Alleged Evidentiary Errors

(1) Exclusion of Prior Crimes: Appellant sought to

introduce evidence of prior criminal conduct by Brewer for the

purpose of showing that ““he had an explosive personality and

was likely in a confrontational situation to become enraged and

strike out at otherwise innocent persons.” Specifically,

appellant offered to prove that approximately 23 days before the

Johnson killing, Brewer committed an armed robbery; during

the commission of that crime the victim, a 66-year-old man,

took a swing at Brewer and swore at him, and Brewer became

so incensed that when the man turned and started to walk away,

he shot him in the back. Appellant insisted that the proffered

evidence tended to prove that Brewer did not kill Johnson by

mistake or inadvertence, but rather harbored an independent

motive which foreclosed the applicability of the transferred

intent and foresecable consequence doctrines to this case. After

a hearing the trial court ruled that the proffered evidence was

inadmissible because the two situations were different and that

the evidence was excludable under Evidence Code section 352

as well, inasmuch as its probative value was outweighed by its

prejudicial effect.” Appellant argues that the exclusion of the

7. The trial court explained its ruling as follows: “As far as | can

determine from the evidence, and you did go over it again, the swearing

was directed at people in general. Mr. Oden put Mr. Brewer as one of the

more distant individuals in this crowd of some 50 around Mr. Johnson and

the scene. That is far, far different from the situation where there's a one-

on-one, an attempted assault, very much directed swearing and flight. It

is so far distant that, certainly under 352 of the Evidence Code, I fee! that

its relevance, if any, is far outweighed by the prejudice that it would

engender by introducing that evidence.’

32a

prior crime was prejudicially erroneous because (1) the

proffered evidence was admissible under Evidence Code section

1101, subdivision (b), in order to show motive and intent; and

(2) the tnal court erred in applying Evidence Code section 352

to exclude evidence which has been made admissible under

section 1101, subdivision (b), of the Evidence Code. Neither of

these contentions has any merit.

Evidence of other crimes is inadmissible under the statute

unless it is relevant to prove some fact other than the person’s

propensity to commit the crime. (Evid. Code, § 1191.)” The

case law teaches that before permitting the jury to hear evidence

of other offenses, the court must ascertain whether that evidence

is relevant (i.e., whether it tends logically, naturally and by

reasonable inference to prove the issue upon which it is

offered). (Evid. Code, § 210; People v. Thompson (1980) 27

Cal. 3d 303; 316; People v. Peets (1946) 28 Cal.2d 306, 315.)

In determining relevance the “court must look behind the label

describing the kind of similarity or relation between the other

offense and the charged offense; it must examine the precise

elements of similarity between the offenses with respect to the

issues for which the evidence is proffered... . .” (People v.

Schader (1969) 71 Cal.2d 761, 775; People v. Thompson,

supra, 27 Cal.3d 303.) Furthermore, if the connection between

the uncharged offense and the ultimate fact (which is intended

to be proved) is not clear, the evidence should be excluded.

(People v. Durham (1969) 79 Cal.2d 171, 186-187, see also

OT em

8. Evidence Code section 1101 provides in relevant part: “(a) Except

as provided in this section and in Sections 1102 and 1103, evidence of a

person's character or a trait of his or her character (whether in the form of

an opinion, evidence of reputation, or evidence of specific instances of his

or her conduct) is inadmissible when offered to prove his or hr conduct on

a specified occasion. [%} (b) Nothing in this section prohibits the admission

of evidence that a person committed a crime, civil wrong, or other act when

relevant to prove some fact (such as motive, opportunity, intent,

preparation, plan, knowledge, identity, absence or mistake or accident

) other than his or her disposition to commit such n act.”)

33a

People v. Sam (1969) 71 Cal.2d 194, 203.)

The above cited principles are applicable where, as here, the

evidence of another offense is offered to prove intent or motive.

As stated in Thompson: “It has been assumed on occasion that

a showing of substantial similarity 1s not required if intent is the

material fact sought to be proved by the introduction of an

uncharged offense. This assumption is too broad. It is correct

only when the similarity of offenses is irrelevant to the chain of

inference sought to be drawn between the uncharged offense

and the fact of intent in the charged offense. . . . [{] However,

similarity is often necessary to bridge the gap between other

crimes evidence and the material fact sought to be proved.”

(People v. Thompson, supra, 27 Cal.3d at p. 319, fn. 23.)

It follows that in the case at bench the tnal court properly

analyzed the similarities between the Johnson killing and the

prior robbery and, in light of the evidence, correctly concluded

that due to the vast discrepancies between the two offenses the

other crime evidence was inadmissible to prove the intent or

motive of the perpetrator. Significantly enough, the evidence at

bench unmistakably shows that there was no personal

confrontation or argument between Johnson and Brewer prior

to the shooting. The witnesses testified that Brewer stood on

the sidewalk some distance away and that Johnson was

quarreling with the crowd and appellant, rather than Brewer.

For example, Oden recalled that Johnson was very upset and

was arguing with the whole crowd and that the cursing and

exchanging angry words took place between Johnson and the

crowd, rather than between Johnson and a specific person or

persons. Gary Henry, another witness, also confirmed that

Johnson was yelling at everyone. Jeftrey likewise observed that

the argument was between appellant and Johnson, and that

Johnson was pushing and shoving appellant when Turner came

out of the house. The latter was corroborated by Alex who

testified that Johnson pushed appellant when the latter tried to

approach Turncr.

Appellant’s claim that Johnson’s statement nght before the

34a

shooting: “Go ahead, I can at least take one” was addressed at

Brewer and could have provided sufficient provocation for the

shooting, is taken out of context and is unsupported by the

evidence. As mentioned earlier, the record convincingly shows

that nght before the shooting appellant was reaching toward the

door of his car and was facing the crowd on the street rather

than Brewer or his blue car.” Moreover, Turner testified that

the Johnson statement, “I could take at least one’’ was directed

at Jester Taggart.”

In sum, since Johnson did not personally argue, quarrel with

or provoke Brewer, the other crime evidence involving a

personal confrontation between Brewer and his victim was

simply not sufficiently similar (ana hence relevant) to prove

Brewer's state of mind in committing the charged offense.

Evidence of the prior robbery was properly excluded by the trial

court as irrelevant. (Evid. Code, § 350.)

9. The pertinent part of Turner's testimony reads as follows: “Q.

Now, just prior to the shooting, within seconds, did you hear anybody say

anything? [§]) A. Before the shooting? [9) Q. Just before the shooting. [{]

A. Say, ‘Watch out, he’s gonna shoot.’ [9] Q. Who said that? [1] A.

Sounded like Jester Taggart. [1] Q. Did Mr. Johnson say anything before

he was shot? [1] A. He said, ‘Yes, I can at least take one.’ [1] Q. Could

you tell where he was, where he was faced in relationship to this blue car

he said this? [{] A. He wasn't faced towards the blue car. He was faced

towards the street. [1] Q. Facing where? [| A. Towards the street.”

(emphasis added.)

10. Excerpts from Turner’s testimony on redirect: “Q. And I asked

you” ‘Now, did you hear Mr. Johnson say anything before he was shot?’

Your reply? [¥] A. ‘Yeah.’ [%] Q. Did I say -- I asked you, “Did you’ - -

{9} A. ‘Yeah.’ {9} Q. ‘And what did he say?’ ["] A. ‘He said, “I could take

at least one.”’ [%] Q. Did I ask you then: ‘Who was that - - who were those

directed towards?’ What was your answer? [4%] A, ‘Jester Taggart.’ [4]

Q. Did I ask you: ‘Where was Jester Taggart?’ (1) A. ‘On the corner of

Simonton Street.’ [1] Q. Did I ask you: ‘In relationship to the car where

the shots came from, where was he?’ What did you say? [9| Right here?

{1} Q Yes. [9] A. ‘In relationship’ --{{] Q. And I asked you: ‘How close

to the car was he?’ {%] A. ‘About 15 feet.’ [9] Q. ‘So, Mr. Johnson says

to Jester Tayyart that he could take one of them?’ [%] A. ‘Yeah.’ “

(Emphasis added.)

35a

Moreover, the other crime evidence was also excludable

pursuant to Evidence Code section 352. Under this section the

court, in its discretion, may exclude evidence if its probative

value is outweighed by its prejudicial effect or if its admission

would confuse the issue or mislead the jury. The discrepancies

between the evidence of the charged offense and the proffered

evidence of the other crime affected not only the relevancy, but

also justified the trial court in excluding such evidence for lack

of its probative value and also because the offered evidence

would only confuse the issue and/or mislead the jury. The trial

court has wide discretion under Evidence Code section 352 to

exclude such evidence and its ruling will not be disturbed on

appeal in the absence of showing an abuse of discretion.

(People v. Diamond (1970) 10 Cal.App.3d 798, 801.)

Appellant’s assertion that the other crime evidence falling

within the purview of Evidence Code section 1101, subdivision

(b), is not subject to the court’s discretionary power under

Evidence Code section 352, is incorrect. As our Supreme Court

succinctly stated in People v. Thompson, supra, 27 Cal.3d 303,

317, footnote 17: “[E]vidence of other crimes is not

automatically admissible under subdivision (b) whenever it is

offered to prove an intermediate fact other than disposition.

Subdivision (b) merely clarifies the fact that subdivision (a)

‘does not prohibit’ the admission of such evidence when it is

offered to prove a fact other than disposition. (Cal. Law

Revision Com. comment to Evid. Code, § 1101.) The evidence

of other crimes must still satisfy the rules of admissibility

codified in sections 210, 350 and 352.” (Emphasis added.)

(2) Adoptive Admissions: During the course of the trial,

Oden testified, without contemporaneous objection by defense

counsel, concerning the conversation between Brewer and

appellant after the shooting. According to Oden, Brewer

reported to appellant that “he had tooken care of that.”

Appellant then told Brewer, “he didn't have that right now, but

he [Brewer] could come back later and he [appellant] would

give it to him.” Appellant asked Brewer what happened.

36a

Brewer replied, “You don’t have to worry about him no more.”

Counsel for appellant subsequently argued in chambers that

these statements were not admissible as admissions or

coconspirator declarations. The trial court admitted them as

adoptive admissions. Because there was conflicting evidence

as to whether appellant was present when Brewer made these

remarks, the question of appellant’s presence correctly was left

for the jury to resolve. Having admitted the evidence, the tral

court instructed the jury on adoptive admissions using CALJIC

No. 2.71.5 (4th ed. 1979). Appellant now claims he was

denied effective assistance of counsel because trial counsel

failed to object to admission of the evidence in a timely fashion

or to move to have it stricken. He also asserts the statements

were inadmissible as adoptive admissions and challenges the

legality of CALJIC No. 2.71.5.

The test for establishing ineffective assistance of counsel is

twofold. In addition to showing that counsel failed to act in a

manner comporting with that of a reasonably competent lawyer,

defendant must also demonstrate that absent counsel’s

inadequacies it is reasonably probable a more favorable

determination would have resulted. (People v. Gates (1987) 43

Cal.3d 1168, 1183.) Because we conclude the evidence was

properly admitted, we need not further address the competency

issue.

Evidence Code section 1221 embodies the adoptive

admission exception to the hearsay rule: Evidence of a hearsay

statement offered against a party is admissible as an adoptive

admission “if the statement is one of which the party, with

knowledge of the content thereof, has by words or other conduct

manifested his adoption or his belief in its truth.” When a

person is accused of committing a crime under circumstances

affording him an opportunity to refute the accusation, and where

there is no indication that he or she is relying on Fifth

1). Al! CALJIC instructions referred to are from the fourth edition

unless otherwise noted

37a

Amendment nights, the accusation and silence or equivocation

are admissible as an adoptive admission of guilt. (People v.

Preston (1973) 9 Cal.3d 308, 313-314.) The party need not

explicitly acknowledge the veracity of the accusatory statement;

the typical response is one of evasion, equivocation or even

silence. (People v. Humphries (1986) 185 Cal.App.3d 1315,

1335.)

Appellant insists that in the present case Brewer’s comments

were not accusatory; nor did they compel a response from

appellant. Thus he argues no inference reasonably could be

drawn from his response. We disagree. Under the

circumstances Brewer's statement was an admission on his part

that he had performed the contract which, in turn, carried the

implied accusation that appellant had hired him to carry out the

killing. Appellant’s silence or failure to refute the statement,

coupled with the equivocal response that he didn’t have “that”

right now and his further inquiry as to exactly what happened,

manifested adoption of Brewer’s accusatory statement.

Finally, appellant also assails the legality of CALJIC No.

2.71.5, complaining that it incorrectly sets forth the requisite

findings to be made by the jury with respect to adoptive

admissions.“ According to appellant, the objectionable

instruction fails to instruct the jurors that they must determine

whether the appellant’s failure to reply showed criminal intent

12. The following instruction, modeled closely after CALJIC No. 2.71.5, was

given to the jury: “If you should find from the evidence that there was an occasion

when the Defendant, under conditions which reasonably afforded him an opportunity

to reply, failed to make denial or made false, evasive or contradictory statements in

the face of an accusation expressly directed to him or in his presence charging him

with the crime for which he is now on trial or tending to connect him with its

commission, and if you should find that he heard the accusation and understood its

nature, the circumstance of his silence or the conduct on that occasion may be

considered against him as indicating an admission that the accusation thus made was

true. [§] Evidence of such an accusatory statement is not received for the purpose

of proving its truth, but only as it supplies meaning to the silence and conduct of the

accused in the face of it; and unless you should find that his conduct at the time

indicated an admission that the accusatory statement was true, you should entirely

disregard the statement.”

38a

or consciousness of guilt. Appellant is manifestly wrong; the

instruction ends with very clear directions to ignore the

statement if the incriminating inference cannot be drawn from

appellant’s conduct: “[UJnless you should find that his conduct

at the time indicated an admission that the accusatory statement

was true, you should entirely disregard the statement.”

C. Jury Instructions

(1) Transferred Intent Instruction: As pointed out earlier,

appellant’s liability was predicated on the doctrines of aiding

and abetting and transferred intent. If a person purposely or by

deliberate and premeditated malice attempts to kill one person,

but by mistake or inadvertence kills another instead, the law

transfers the intent and the homicide so committed is murder of

the first degree. (People v. Sears (1970) 2 Cal.3d 180, 189;

People v. Siplinger (1967) 252 Cal.App.2d 817, 825.) In

accordance therewith, the jury was instructed per CALJIC No.

8.65 which states, “When one attempts to kill a certain person,

but by mistake or inadvertence kills a different person, the

crime, if any, so committed is the same as though the person

originally intended to be killed had been killed.” Appellant

claims that the instruction given in the language of CALJIC No.

8.65 was inadequate in the present case and that the trial court

had a sua sponte duty to further instruct that if Brewer killed

Johnson for independent, personal reasons rather than by

mistake or inadvertence, appellant could not be held criminally

liable for Brewer's act. Appellant’s point is not well taken.

It is settled law that in a criminal case the tnal court must

instruct the jury sua sponte on the general principles of law

relevant to the issues raised by the evidence, but need not

instruct on specific points developed at trial. (People v. Flannel

(1979) 25 Cal.3d 668, 682.) The general principles of law

governing the case are those principles closely and openly

connected with the facts before the court and which are

necessary for the jury’s understanding of the case. (People v. St

39a

Martin (1970) 1 Cal.3d 524, 531.) While the duty to instruct on

the general principles of law extends also to the defenses raised

in the case, the obligation to give sua sponte instruction on a

particular defense arises only if the defendant relics on such

defense and there is substantial evidence supporting the same.

(People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on

other grounds in People v. Flannel, supra 25 Cal.3d at p. 684;

People v. Wickersham (1982) 32 Cal.3d 307, 326.) Substantial

evidence cannot be equated with “any” evidence; it must be of

ponderable significance, reasonable in nature, credible and of

solid value. (Estate of Teed (1952) 112 Cal.App.2d 638, 644;

see also People v. Johnson, supra, 26 Cal.3d at p. 576.)

When viewed under these principles, appellant’s claim of

error must be rejected because the instruction of the trial court

was both correct and complete; it clearly specified that the

transferred intent applied only if the killing of the unintended

victim (i.c., Johnson) took place by mistake or inadvertence.

Consequeniily, the additional instruction (i.c., that the theory of

transferred intent was inapplicable if Brewer killed Johnson, the

unintended victim for independent, personal reason rather than

by mistake or inadvertence) would have been redundant; it

would have amounted to no more than a further elaboration of

a point adequately covered by the instruction already given.

The trial court’s duty to instruct sua sponte does not extend to

redundant or cumulative instructions which go beyond the

general principles of law and are unnecessary for the jury’s

understanding of the case. (People v. St. Martin, supra, |

Cal.3d at p. 531.)

Furthermore, appellant’s contention fails for lack of

substantial evidence showing that Brewer killed Johnson for a

personal reason, independent of the contract to kill Turner.

Contrary to appellant’s insistence, the evidence introduced at

trial conclusively establishes that Brewer shot Johnson under

the mistaken belief that he was Turner. This conclusion is

inescapable since the murder for hire targeted Turner and

immediately after the shooting Brewer showed up at appel'»nt’s

40a

house to claim his bounty for carrying out that contract.

The evidence cited by appellant to prove that Brewer

intentionally shot Johnson (i.e., Johnson stood but a few feet

away; the projectories and angles of the projectiles indicated

that Johnson was the intended target; Turner was pointed out to

Brewer prior to the killing) neither precludes nor contradicts the

jury’s conclusion that Brewer mistakenly believed he had shot

Turner. This is especially so in view of the fact that Brewer had

only a brief glimpse of Turner before he left the scene and

returned to commit the crime and in view of the uncontradicted

evidence that following the shooting he expressed his belief that

he had killed Turner, the subject of the contract. Moreover, the

record is devoid of any substantial evidence that Brewer

entertained personal malice or any independent motive toward

Johnson. The swearing and arguments on the part of Johnson

were directed at the crowd and appellant; Brewer was only an

observer, not a target, of Johnson’s animosity. Finally, we fail

to see how the statement that Johnson was “talking a mile a

minute” would provide Brewer with a personal, independent

motive for shooting Johnson. In sum, since appellant failed to

produce substantial evidence to support the defense hypothesis

that Brewer had an independent motive to kill Johnson, the trial

court was under no sua sponte duty to instruct on that theory.

(2) Scope of Aider and Abettor Liability: As pointed out

earlier, the aider and abettor is liable not only for the planned

crime he intended to facilitate, but also for the natural and

reasonable or probable consequences of any act (including any

reasonably foreseeable offense) he knowingly and intentionally

encouraged. (People v. Beeman, supra, 35 Cal.3d at p. 560;

People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) Consistent

therewith, the trial court instructed the jury per CALJIC No.

3.00: “One who aids and abets is not only guilty of the

particular crime that, to his knowledge, his confederates are

contemplating committing, but he is also liable for the natural

and reasonable or probable consequences of any act that he

knowingly or intentionally aided or encouraged.”

4la

Appellant contends that since the determination of whether

an unplanned crime is the natural and reasonable consequence

of the planned offense which the defendant allegedly assisted is

a question of fact (People v. Durham, supra, 70 Cal.2d at p.

181; People v. Rogers (1985) 172 Cal.App.3d 502, 515), the

trial court should have given a supplemental instruction

delineating the jury’s fact-finding obligation (People v.

Hammond (1986) 181 Cal.App.3d 463) and that its failure to do

so constituted error. We agree.

The case in point is Hammond. Similar to the case at bench,

the defendant in Hammond was tried as an aider and abettor to

a felony murder committed during a robbery, and as to the

foreseeable consequence doctrine the jury was instructed per

CALJIC No. 3.00. On appeal defendant contended that CALJIC

No. 3.00 is erroneous and should be supplemented because it

instructs the jury to assume rather than find whether the

unplanned crime was in fact a natural and probable consequence

of the planned crime. The reviewing court agreed and held that

“when, as here, a defendant is charged not only with the

perpetrator’s planned offense but with another offense

ultimately committed as a natural and probable consequence

thereof, CALJIC No. 3.00 (4" ed. 1979) [including the 1984

revision]) should be supplemented with an instruction clarifying

the jury’s related responsibility to determine whether the act

committed was in fact a natural and probable consequence of

the criminal act knowingly and intentionally encouraged.”

(People v. Hammond, supra, 181 Cal.App.3d at p. 469.)

However, as in /lammond, we find that the instruction error

here was harmless. Appellant’s main theory that Brewer’s act

was unforeseeable because he killed Johnson for independent

reasons or motive ts not substantiated by the record. (See

discussion, supra). Furthermore, since the agreement between

appellant and Brewer called for killing Turner, a human being,

it was reasonably foreseeable that Brewer by mistake of

inadvertence could kill the wrong person. Under these

circumstaiees §{ 1 NOt reasonably probable that in the absence

42a

of the instructional error a more favorable verdict to appellant

would have been reached; as a consequence the error must be

deemed harmless. (People v. Watson (1956) 46 Cal.2d 818,

836.)

Appellant additionally contends that CALJIC No. 3.00 (1984)

revision) should have been accompanied by supplemental

instructions elaborating the basis for resolving the foreseeability

determination. We disagree.

Here, the instruction itself stated that the aider and abettor is

guilty of the “natural and reasonable or probable consequences”

of acts he knowingly and intentionally encourage’. Such an

instruction amplifies sufficiently the test of foreseeability and

informs the jury concerning the analysis required. Moreover,

trial courts do not have a sua sponte duty to give amplifying

instructions when the terms employed in the instructions are

commonly understood by persons familiar with the English

language; such a duty arises only where the terms have a

“technical meaning peculiar to the law.” (People v. Anderson

(1966) 64 Cal.2d 633, 639-640; People v. Montero (1986) 185

Cal.App.3d 415, 430.) The phrase “natural and reasonable or

probable consequences” does not have a technical meaning

peculiar to the law and we presume it to be within the common

understanding of jurors, such that further elaboration is not

required.

Appellant further urges us to rule that CALJIC No. 3.00

(1984 revision) is constitutionally infirm because it (1)

substitutes negligence for specific intent as the mens rea for

accomplice liability, and (2) permits a lesser mens rea to convict

the accomplice than to convict the principal for the same crime.

In support of his argument appellant cites numerous

commentators, including the drafters of the Model Penal Code,

as cniticizing the foreseeable consequences doctrine.

The answer to appellant’s contention is People v. Croy,

supra, 41 Cal.3d 1, where our Supreme Court upheld the

constitutionality of CALJIC 3.00 by stating: “The requirement

that the jury determine the intent with which a person tned as an

43a

aider and abettor has acted is not designed to insure that his

conduct constitutes the offense with which he is charged. His

liability is vicarious. Like the conspirator whose liability is

predicated on acts other than and short of those constituting the

elements of the charged offense, if the acts are undertaken with

the intent that the actual perpetrator’s purpose be facilitated

thereby, he is a principal and liable for the commission of the

offense. Also like a conspirator, he is guilty not only of the

offense he intended to facilitate or encourage, but also of any

reasonably foreseeable offense committed by the person he aids

and abets.... []] It follows that a defendant whose liability is

predicated on his status as an aider and abettor need not have

intended to encourage or facilitate the particular offense

ultimately committed by the perpetrator. //is knowledge that an

act which is criminal was intended, and his action taken with

the intent that the act be encouraged or facilitated, are

sufficient to impose liability on him for any reasonably

foreseeable offense committed as a consequence by the

perpetrator. It is the intent to encourage and bring about

conduct that is criminal, not the specific intent that is an element

of the target offense, which Beeman holds must be found by the

jury. [Citation.}” (At p. 12, fn. 5, emphasis added; accord

People v. Luparello (1986) 187 Cal.App.3d 410, 441.) Itis, of

course, elementary that under the doctrine of stare decisis we are

bound to follow the decisions of our Supreme Court. (Auto

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Finally, appellant argues that since the jury was instructed on

“alternative” theories of aider and abettor liability, the judgment

of first degree murder must be reversed because the reviewing

court cannot determine from the record which theory formed the

basis for the verdict.“

13. The jury was also instructed in the language of CALJIC No. 3.01

(1984 Revision) as follows: “A person aids and abets the commission of a

crime when he or she, one with knowledge of the unlawful purpose of the

perpetrator and two with the intent or purpose of committing, encouraging

or facilitating the commission of the offense, by act or advice, aids,

44a

This contention of appellant cannot stand for two chief

reasons. One, the law is well established that if one of the two

theories is supported by overwhelming or strong or convincing

evidence, the judgment based upon the verdict will not be

reversed even if the alternative theory rests on erroneous

instruction. (People v. Haskett (1982) 30 Cal.3d 841, 851;

People v. Camden (1976) 16 Cal.3d 808, 816; People v. Atkins

(1982) 128 Cal.App.3d 564, 569.) The proposition that

appellant hired Brewer to kill (not only to beat up) Turner and

that Brewer proceeded to carry out the agreement with

appellant’s intent, knowledge and encouragement, is supported

not only by strong or overwhelming, but virtually conclusive

evidence. (See discussion, supra.) Two, appellant’s assertion

is based upon the hypothesis that the foreseeable consequences

instruction was prejudicially erroneous. Since we have

concluded otherwise, appellant’s contention automatically fails.

(3) Mental Retardation Defense: A defense psychologist

testified that appellant, with a full scale “IQ” of 75, was

borderline mentally retarded. The jury received no instructions

relating that evidence to any legal defense to the charged crimes.

Appellant now submits that the tral court had a sua sponte duty

to provide instructions on the defense of idiocy found in section

26, which provides in pertinent part as follows: “All persons

are capable of committing crimes except . . . idiots.”

in /n re Ramon M. (1978) 22 Cal.3d 419, the Supreme Court

reviewed the limited treatment afforded to the idiocy defense by

the courts and determined that because the terms “idiocy,”

“lunacy” and “insanity” all described mental conditions

rendering a defendant not “of sound mind,” a single test would

suffice to define each defense. (/d., at p. 415.) Moreover, the

Supreme Court had just repudiated the M’Naghten test of

insanity, adopting instead the American Law Institute (ALI)

formulation. (People v. Drew (1978) 22 Cal.3d 333, 339, 348.4

promotes, encourages or instigates the commission of the crime.”

14. Tne ALI formulation reads as follows: “A person is not

45a

Against this background the court then concluded that (1) the

ALI tests encompasses both idiocy and insanity; (2) the defense

of idiocy is governed by the ALI standard; and (3) mental

retardation thus constitutes a defense to criminal conduct if ““‘at

the time of such conduct as a result of mental disease or defect

he lacks substantial capacity either to appreciate the criminality

of his conduct or to conform his conduct to the requirements of

the law.’” (/n re Ramon M., supra, 22 Cal.3d at p. 428.)

At the time Ramon M. was decided, the statutory scheme

governing the insanity and idiocy defenses was substantially

different from the present scheme. We start with section 20,

requiring that a union of act and intent must exist in every

crime. As to intent, former section 21, enacted in 1872,

provided: “The intent. . . is manifested by the circumstances

connected with the offense, and the sound mind... of the

accused,” “‘sound mind” being defined by exclusion to refer to

everyone except idiots, lunatics or persons affected with

insanity. The 1981 amendment to section 21 deleted reference

to the sound mind of the accused and the definition thereof.

(Stats. 1981, ch. 404, § 1, p. 1591.) Concurrently, former

subdivision three of section 26, which included lunatics and

insane persons within the class of persons incapable of

committing crimes, was also deleted by amendment. (Stats.

1981, ch. 404, § 3, p. 1592.) Finally, the electorate in 1981

adopted the initiative measure popularly known as Proposition

8 which restored M’Naghten as the proper test for the insanity

defense. (§ 25, subd. (b)./

responsible for criminal conduct if at the time of such conduct as a result

of mental disease or defect he lacks substantial capacity either to

appreciate the criminality of his conduct or to conform his conduct to the

requirements of the law.” (Model Pen. Code (Proposed Official Draft 1962)

§ 4.01, subpart (1).)

15. Section 25, subdivision (b), provides that the defense of insanity

requires proof by a preponderance of the evidence that defendant was

“incapable of knowing or understanding the nature and quality of his or

her act and of distinguishing right from wrong at the time of the

46a

The thrust of these changes is that idiocy, which previously

was linked statutorily with lunacy and insanity by virtue of

former sections 21 and 26, now stands alone in section 26. We

nonetheless think that the logic compelling the Ramon M. court

link the test for idiocy with the test for insanity still applies

because they both describe mentally disabling conditions.

Under this analysis, the proper test for mental retardation would

be the M’Naghten rule. (§ 25, subd. (b).)

We return now to appellant’s allegation of error, observing

again that the trial court’s sua sponte obligation to instruct on a

specific defense only arises when a defendant relies on such

defense or substantial evidence is adduced supporting the

defense and the defense is compatible with defendant’s theory

of the case. (People v. Sedeno, supra, 10 Cal.3d at p. 716.)

Here the record ts devoid of any reliance on the part of appellant

on the defense of idiocy. To the contrary, defense counsel made

it clear in closing argument that the purpose of testimony

concerning appellant’s mental functioning was to assist the jury

in evaluating statements made by appellant to the police, his

theory being that a man with an “IQ” of 75 does not carefully

select his language. This theory was also alluded to by the trial

court when it responded to the jury’s inquiry that sanity was not

an issue in the case, the psychologist’s testimony being

proffered on the issue of appellant’s ability to communicate.

Additionally, there was not a shred of evidence produced at trial

concerning appellant’s capability to understand the “nature and

quality” of his acts or to distinguish right from wrong at the

time of commission of the crime. Since the evidence did not

raise an issue as to the mental retardation defense as we

understand it, there was no sua sponte duty to so instruct.

commission of the offense.” In People v. Skinner (1985) 39 Cal.3d 765, 776-

777, the Supreme Court clarified that the use of the conjunctive “and” was

a drafting oversight and that the statutory provision should be read in the

traditional sense such that the disjunctive “or” connects both prongs of the

M'Naghten test.

47a

II]. SPECIAL CIRCUMSTANCES ISSUES

A. Sufficiency of the Evidence

Appellant argues that the evidence was insufficient to

establish the special circumstance of intentional murder carried

out for financial gain. The two “hubbas” originally offered to

Brewer were worth $50 at most. Appellant asserts this offer did

not constitute valuable consideration within the meaning of

section 190.2, subdivision (a)(1). He further argues that the

homicide was primarily motivated by retaliation, and that such

an insignificant consideration does not constitute a murder

“carned out for financial gain.” Finally, appellant contends the

doctrine of transferred intent should not apply to the financial

gain special circumstance.

These contentions must fail. First, the term “valuable

consideration” has no application to the case at bar. Former

section 190.2, subdivision (a) (Stats. 1977, ch. 316, p.1257),

included a murder for hire special circumstance which referred

to an “agreement by the person who committed the murder to

accept a valuable consideration ....”” The present death penalty

statute, added by initiative measure in 1978, carries no reference

to “valuable consideration,” casting the special circumstance as

follows: “The murder was intentional and carried out for

financial gain.” (§ 190.2, subd. (a)(1).)

Second, there is no quantum requirement attached to the

concept of “financial gain” and, hence, the term is not stretched

beyond its ordinary usage by including the value of two

“hubbas” within its purview. Further, contrary to appellant’s

assertion, there is no reasonable doubt concerning the meaning

of “financial gain” and the value attached to the concept.

Rather, the statute requires only that the victim’s death serve as

“consideration for, or an essential prerequisite to, the financial

gain sought by the defendant.” (People v. Bigelow (1984) 37

Cal.3d 731,751.) And in a murder-for-hire situation, the person

who intentionally aids and abets the killer in the commission of

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a first degree murder for the perpetrator’s own financial gain

becomes subject to special circumstance punishment by virtue

of section 190.2, subdivision (b). (/d., at p. 750, fn. 11; People

v. Freeman (1987) 193 Cal.App.3d 337, 339.) Thus the

defendant/hirer need not himself be financially motivated.

(/bid.)

Third, we disagree that from Brewer’s vantage, the homicide

was motivated primarily by retaliation, presumably as opposed

to financial gain. The only evidence concerning retaliation

relates to appellant’s motive in hiring Brewer in the first

instance. Concerning the allegation that Brewer killed Johnson

for independent reasons of personal malice, the evidence does

not support such a contention.

Fourth, the fact that Johnson was mistakenly or inadvertently

killed instead of Turner does not preclude application of the

financial gain special circumstance. From the killer’s

perspective, an intentional murder was committed with a view

to financial reward. The court in People v. Howard (1988) 44

Cal.3d 375, cautions us that the relevant inquiry is “the

particular defendant’s purpose, whether or not achievable.” (P.

410, fn. 8.) In cases where financial gain must be analyzed vis-

a-vis the hired killer, the killer’s purpose becomes the proper

focus for determining applicability of the statute once the

threshold derivative liability has been established. Here, there

was evidence that Brewer intentionally killed the victim in order

to obtain a financial benefit. The fact that he killed the wrong

person does not detract from his purpose.

Based on our review of the record and contrary to appellant’s

contentions, we find there to be substantial evidence from which

a rational trier of fact could conclude that (1) as between

appellant and Brewer, Turner’s death was consideration to

appellant for a financial gain sought by Brewer, and (2) Brewer

mistakenly or inadvertently killed the actual victim in order to

benefit financially. Appellant offered Brewer either two

‘“hubbas” or $200 (reduced to $100 because of the mistake) to

beat up, shoot or kill Turner; and based on appellant’s own

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admission, he hired Brewer to kill Turner. The evidence also

shows that Brewer acted on his agreement with appellant in

order to fulfill its terms. Following his initial discussion with

appellant, Brewer proceeded to arm himself and then continued

to the site of the killing, observing the various actors. After the

shooting, he sought his reward.

B. Financial Gain Instructions

As to the special circumstances allegedly present in this case,

the trial court instructed the jury that if it found appellant guilty

of murder in the first degree, “you must then determine if the

murder was committed under the following special

circumstance: intentional murder for financial gain .. . . [] To

find the special circumstance referred to in these instructions as

murder for financial gain is true, each of the following facts

must be proved: [{]] One, that the murder was intentional; and

[$1] Two, that it was carried out for financial gain.”

Appellant would have us agree that the tnal court had a sua

sponte duty to define financial gain to include the element of

motive as a prerequisite to sustaining the special circumstance.

According to appellant this “error” was exacerbated by

inclusion of the following instruction, patterned after CALJIC

No. 2.51, within the instructions presented to the jury: “Motive

is not an element of the crime charged and need not be proved.

However, you may consider motive or lack of motive as a

circumstance in this case. Presence of motive may tend to

establish guilt; absence of motive may tend to establish

innocence. You will therefore[] give its presence or absence, as

the case may bel the weight for which you find it to be entitled.”

Our disagreement with appellant takes on a twofold analysis.

First, we reiterate that under Bige/ow and its progeny, rather

than being subjected directly to the financial gain special

circumstance, the hirer of a paid killer is subject derivatively

under section 190.2, subdivision (b). (People v. Bigelow, supra,

37 Cal.3d at p. 750, fn. 11; People v. Freeman, supra, 193

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Cal.App.3d at pp. 339-340.) Thus the inclusion of CALJIC No.

2.51 was entirely appropriate given that as to the appellant,

financial motivation was not an issue. His crime, if any, was as

an aider and abettor of an intentional murder carried out by the

killer for financial gain.

Secondly, as to Brewer, there was no need to further define

financial gain. Absent a request for amplification, it is sufficient

for the court to define the elements of a crime by instructing in

the unadorned language of the statute, but only if the jury easily

could understand the statute without further guidance. (People

v. Failla (1966) 64 Cal.2d 560, 565; see also People v. Howard,

supra, 44 Cal.3d at p. 408.) Ifa term has a technical meaning

peculiar to the law, the court on its own motion must supply the

appropnate amplification; commonly understood terms do not

require further embellishment. (People v. Anderson, supra, 64

Cal.2d at 641.)

The question then becomes whether the limiting construction

of the financial gain special circumstance announced by the

Supreme Court in People v. Bigelow, supra, 37 Cal.3d 731, is

required in the present case. In Bigelow, the Supreme Court

was concerned with the problem of multiple and overlapping

findings of special circumstances based on the same conduct,

most notably the overlap between the financial gain special

circumstance and that of felony murder (§ 190.2, subd. (a)(17)),

“since most robberies, as well as many burglaries, kidnapings

and arsons, are committed for financial gain.” (/d., at p. 750.)

Accordingly, the Supreme Court adopted a restricted

formulation pursuant to which “the financial gain special

circumstance applies only when the victim’s death is the

consideration for, or an essential prerequisite to, the financial

gain sought by the defendant.” (/d., at p. 751.)

In People v. Howard, supra, 44 Cal.3d at p. 408, the Supreme

Court decided that the phrase “for financial gain” is not a

technical term except for the Bigelow limitations, and further

cautioned that while the Bige/ow articulation should be applied

when important to avoid overlap, “it is not intended to restnct

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construction of ‘for financial gain’ when overlap is not a

concern.” (P. 410.) Here we have no Bigelow concern and we

do not think the meaning of the term “for financial gain”caused

confusion. The statute adequately addresses the concept of

motive in a non-Bigelow setting through the straight forward

language “for financial gain.”

C. Intent to Kill

Appellant challenges the special circumstances instructions

as failing to require a specific intent to kill on his part. We

agree with appellant that instructions on proof of intent to kill

were required in his case, but contrary to appellant’s assertions,

the instructions were sufficient.

Specifically, the following instructions patterned in part after

section 190.2, subdivision (b), were given: “If Defendant,

Robert Henry, was an aider and abettor but not the actual killer,

it must be proved beyond a reasonable doubt that he intended to

aid in the killing of a human being before you are permitted to

find the alleged special circumstance of that first degree murder

to be true as to Defendant... . [4] If the Defendant intentionally

aided, abetted, counseled, commanded, induced, solicited,

requested or assisted any actor in the commission of murder in

the first degree, which murder was intentional and which was

carried out for financial gain, you should find the special

circumstance to be true.”

Appellant’s constitutional arguments aside, when a defendant

is guilty as an aider and abetter, section 190.2,subdivision (b),

itself compels proof that he or she acted with intent to kill as a

16. Section 190.2, subdivision (b), subjects a defendant to special

circumstances findings under the following situation, among others:

“Every person whether or not the actual killer found guilty of intentionally

aiding, abetting, counseling, commanding, inducing, soliciting, requesting

or assisting any actor in the commission of murder in the first degree .. .

in any case in which... the special circumstances enumerated in

[paragraph] (1)... of this section has been specially found .. . to be true.”

S2a

prerequisite to finding that the financial gain special

circumstance is true. In Carlos v. Superior Court (1983) 35

Cal.3d 131, 153, 154, the Supreme Court construed the word

“intentionally” in section 190.2, subdivision (b), to apply to a//

defendants, perpetrators and accomplices alike, such that a

defendant could not be subject to the felony murder special

circumstance absent proof of intent to kill. The Supreme Court

recently overruled Car/os, determining instead that intent to kill

is not an element of the felony-murder or multiple-murder

special circumstances, “but when defendant is an aider and

abettor rather than the actual killer, intent must be proved.”

(People v. Anderson (1987) 43 Cal.3d 1104, 1147, 1149.) In

reaching this decision, the court concluded as a general matter

that “section 190.2, {subdivision] (b) lays down a special rule

for a certain class of first degree murderers: if the defendant is

guilty as an aider and abetter, he must be proved to have acted

with intent to kill before any special circumstance (with the

exception of a prior murder conviction) can be found true.” (/d.,

at p. 1142.)

This general conclusion was not arrived at through tortured

statutory analysis; nor does the court’s reasoning indicate that

section 190.2, subdivision (b), is at all confusing or ambiguous

in its intent to kill requirement as to aiders and abettors. On the

contrary, the straightforward language of the statute compels

this determination.

Likewise, the instant instruction, paralleling closely the

language of section 190.2, subdivision (b), mandates proof of

intent to kill. Appellant, however, contrasts these instructions

with the instructions given in People v. Fuentes (1985) 40

Cal.3d 629, positing that while the /wentes instructions properly

instruct on intent to kill, the present instructions do not. In

Fuentes, the jury was instructed as to sustaining the special

circumstance allegation (commission of murder during

attempted commissica of robbery) that if defendant were an

aider and abettor, “it would have to find that he ‘intentionally

aided... the actual killer in the commission of the murder of

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the first degree with the specific intent to take a human life’ . .

..”” Ud., at p. 639.)

Fuentes was a pre-Anderson decision wherein the court was

concemed with Carlos error. The above instruction was recited

in the context of explaining that the trial court failed explicitly

to instruct on intent to kill if defendant were the actual killer.

By implication it could be argued that the court blessed this

instruction as being appropriate on the issue of aider and abettor

intent to kill. Be that as it may, the present instruction is not

inadequate on the intent issue because it fuses the mens rea of

the accomplice with that of the perpetrator—the aider and abettor

must intend to aid consummation of not just any crime or

murder, but specifically a first degree murder which fits the

special circumstance allegation in this case, namely, “which

murder was intentional and carried out for financial gain.”

Moreover, the special circumstance requirement that the jury

find defendant “intended to aid in the killing of a human being”

could not be clearer on the issue of appellant’s intent to kill.

Appellant also stresses the prosecutor’s reliance on the

foreseeable consequences involving an unintended crime and

unintended victim, which he maintains aggravated the alleged

instructional error.

As to the unintended crime, the return of the special

circumstance finding under properly given instructions

necessarily precluded the jury from returning a verdict of first

degree murder on the basis that the killing was a foreseeable

consequence of appellant’s intention that Turner be

administered a “good ass whipping.” As to the unintended

victim, the transferred intent instructions appropriately resolved

that issue.

IV. MOTION TO DISMISS SPECIAL CIRCUMSTANCE

Appellant finally argues the tnal court erred in failing to

consider his borderline mental retardation as a mitigating factor

when determining whether to exercise its discretion to dismiss

54a

the special circumstances pursuant to section 1385. We

disagree.

Section 1385, subdivision (a), provides in relevant part: “The

judge or magistrate may, either on his or her own motion or

upon the application of the prosecuting attorney, and in

furtherance of justice, order an action to be dismissed.” The

cases hold that courts have authority under section 1385 to

dismiss special circumstance findings in the furtherance of

justice, thereby rendering a defendant eligible for parole.

(People v. Williams (1981) 30 Cal.3d 470, 489; People v. Lucey

(1986) 188 Cal.App.3d 551, 559.) However, as the Supreme

Court has cautioned, the trial court’s power to strike must be

exercised in a careful and thoughtful manner; it must promote

the administration of justice by assuring that the sentence be

based upon the particular facts of the offense and all

circumstances, and that the punishment exacted be fitting the

crime as well as the perpetrator. (People v. Williams, supra, 30

Cal.3d at p. 489.)

In the case at bench the trial court complied with the above

instructions. After reviewing the evidence and all other

circumstances (including appellant’s prior violent acts), the

court concluded that the protection of society required the denial

of the motion to dismiss the special circumstances, because

appellant was involved in an intentional killing of a human

being and he posed (and will pose) a danger to society. In

addition, the record shows on its face that the trial court did

consider appellant’s mental retardations as a mitigating factor,

but found it not to be an excuse to commit murder.”

17. The pertinent part of the record reads as follows: “(The Court:}

It is said that he ts not as gifted as some other people might be, but this ts

not something that the court of law accepts as an excuse. (9%) The fact that

he did not act as rationally as someone else might have acted ts to be

expected, certuinly in murder Murder for hire is not a rational act. It is

not rational under any sort of circumstances. [%| I can in many ways find

I certainly follow the concern that you voice, Mr. O'Hanlon, but it is not

something that is contemplated by the law [9%] I do not see in the course

of this case mitigating factors that are sufficient to cause me to strike the

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In view of this speaking record, appellant cannot well claim

that his reduced mental capacity was not taken into account by

the court as a mitigating factor and/or that the trial court has

abused its broad discretion in any other way in refusing to

dismiss the special circumstance finding in this case.

The judgment is affirmed.

Anderson,PJ.

We Concur:

Poche, J.

Channell, J.

special circumstances. I frankly have no question as to this Defendant’s

involvement, having heard the evidence at trial. The only thing that didn’t

happen that he had intended to happen was a different person was killed.

{€] The fact that the society at which he lives may in a sense almost

condone this kind of conduct, it does not excuse it in the greater society

which we all live. Certainly I can’t take into consideration the cost and

that kind of factor. [9] Therefore, ] intend to do what the law directs me

to do, and that ts for the protection of society. You may have given all the

fartous factors of this man’s ability, his personality and his intellect. Those

are going to be with him for his life. {"] fle ts a danger to society now and

that ndicates there is going to be a case in the future. Therefore, I am going

to deny the motion to strike the special circumstances. [4] That leaves me

one choice in sentencing, and that ts to sentence the Defendant to the

Department of Corrections for life without possibility of parole. (Emphasis

added.)

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California Courts — Appellate Court Case Information

CALIFORNIA APPELLATE COURTS

Case Information

Supreme Court

Court data last updated: 08/08/2007 02:53 PM

Case Summary Docket Briefs

Disposition Parties and Attorneys | Lower Court

DOCKET (REGISTER OF ACTIONS)

HENRY, ROBERT

Case Number S056606

Date Description Notes

10/08, Petition for writ of By Pro per Petnr

1996 habeas corpus filed Robert Henry

01/28/ Petition for writ of See Cites

1997 habeas corpus denied

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Case

2004 Judicial Council of California

Filed June 8, 1989

ORDER DENYING WRIT OF HABEAS CORPUS

No. SO10192

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

IN BANK

IN RE ROBERT HENRY

ON

HABEAS CORPUS

Petition for writ of habeas corpus DENIED for failure to allege

sufficient facts. (See /n re Swain (1949) 34 Cal.2d 300, 304.)

S

Chiet Justice

58a

California Courts — Appellate Court Case Information

CALIFORNIA APPELLATE COURTS

Case Information

Supreme Court

Court data last updated: 08/08/2007 02:53 PM

Case Summary Docket Briefs

Disposition Parties and Attorneys Lower Court

DOCKET (REGISTER OF ACTIONS)

THE PEOPLE v. HENRY, ROBERT

Case Number S007648

Date Description Notes

10/25/ Petition for review filed By Aplt

1988

12/22/ Petition for review

1988 denied

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2004 Judicial Council of California