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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1324%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

FILED

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~ WFICE OF THECCERR

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 (reneral
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. 8056606, 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

Page

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IN THE SUPREME COURT OF THE UNITED STATES

No.

CHARLES D. MARSHALL, WARDEN, Petitioner,
V.

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NOT FOR PUBLICATION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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am )

Appeal trom the United States Distnct Court
for the Eastern District of California
James K. Singleton, Chief District 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 ofhis 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 partics 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 revicw, 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 v. 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 Dovle v. Ohio, 426 US. 610 (1976

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$70 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 nights were not violated by the prosecutor’s
statements or the jury instruction.

itl

Ninth Circuit Rule 22-1(¢) 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 nght. 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 ‘ta reasonably low
threshold” in order to reccive 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

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

Filed May 16, 2007

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT HENRY, ) No. 05-16947
Petitioner - Appellant, ) D.C. No. CV-94-00916-JKS
\ ) ORDER

CHARLES D. MARSHALL, )

Respondent - Appelice

Before: NOONAN, HAWKINS. and THOMAS. Circult

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
rehcaring 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 1s denied and the suggestion ft

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rehearing en banc 1s rejected

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Filed 01/25/2005

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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

VS.

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CHARLES D. MARSHALL, )
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Respondent. )

)

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 tacts are taken from the opinion of the
California Court of Appeal. The State’s theory of the casc 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 theretore procceded on a theory of transferred
intent

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 Tumer. 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 Turner “‘a good ass
whipping.” According to the Court of Appeal, Brewer fully
understood the true meaning of appellant’s request, 1.e., to kill
Tumer. Brewer immediately went to his girlfriend’s house to
pick upa.22 caliber sawed-off nfle and ammunition, loaded the
gun, placed it in the blue plymouth he had stolen earlier, 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.”

Tumer 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 nde to Turner’s home, and
Turner accepted. They left the residence ivgether. Turner
entered Johnson’s vehicle and sat in the front passenger scar. In
the meantime, Johnson and Henry engaged in a shouting match
and began to pushing cach other. Johnson deprecated Henry’s
coiffure.

Meanwhile, Brewer and Oden arrived at the scence 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 is the guy.”

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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,
wipcd 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. Ile killed the wrong
guy. I can’t understand why | am being charged.”

SCOPE OF REVIEW

Henry filed his orginal 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 Apnil 24, 1996. A petition filed
in district court on or before April 24, 1996, is controlled by
pre-ALEDPA law. See Lindh v. Murphy, 521 U.S. 320 (1997)
This ts true even when a haheas petition is amended after April

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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 vy. McGuire, 502 U.S. 62, 68
(1991).

DISCUSSION

This matter was referred to a United States Magistrate Judge.
Che magistrate filed findings and recommendations, which
Judge Damrell adopted. Dockct 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
interveniny change in the facts; or (3) an intervening
determination that the earlier decision was inconsistent with
controlling authority trom 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

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evidence presented at the tnal 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 sccond-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 ¢.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 Sch/up actual innocence claim is
procedural—-a mcans 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 Sawver v. Whitley, SOS U.S. 333 (1992), or that
announced in Murray v. Carrier, 477 U.S. 478 (1986). in
Sawyer, the Court found that 1t must be shown by cicar and

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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 Sch/up 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 trier
of fact. Under both Sawyer and Carrier the Court concluded
that a petitioner’s showing of innocence 1s not insufficient
solely because the trial record contained sufficient evidence to
support a jury’s verdict. Schlup, 513 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 petitioncr 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 US. 1133 (1998)

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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 1 had
hired Francis Brewer to kill Cednc 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 belicf. 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 tried

T ,
Jot

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

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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.g,
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 vy. 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 $94 (6th Cir. 2004) cert. granted, 2005 WL
32977 (U.S. January 7, 2005); Smith v. Groose, 205 F.3d 1045
(8th 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, 217 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
cause. Under the circumstances there was no due process
violation or was there a proper basis for invoking judicial

1Sa

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 tral. During the course of the
trial, a detailed staternent 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. III, Ex. B, Part 2 at 405. Officer Ronald
Becker, who was also present, confirmed this testimony in 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 us follows:

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Last but not least, of course, is the Defendant’s statement.
You've got it on tape, and I want you to listen to it. |
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 crime, and you sit there and
don’t say, “Hey, | didn’t do it” you can take that into
consideration; if you sit there and kind of mcaly-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 | 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

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in murdering somebody, wouldn’t you say, “Hey, I didn’t
contract to shoot him,” or would you be wormed 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. I 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 cnough
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 true
Fvidence 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 $29.

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 “[n]Jo 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 1s denied due process when a prosecutor seeks to
impeach a defendant’s exculpatory story at tral 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 warnings 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
Iienry 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

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 Doyle 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 applics
even when a defendant does not testify at trial) (citing Anderson
v. Charles, 447 U.S. 404 (1980) (per curium), and A/epper 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.

Herry points out that in addition to the prosecutor’s
rebuttal argument, the jury was instructed on admissions by
silence, or adoptive admissions. The instruction 1s set out
above. The final sentence of the instruction is 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 true.”’

20a

Vol. ILI, 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 pursue
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. Detense trial counsel
obviously felt that the comment was within the range of the

2la

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.

IT 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 shal! 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 relicf, 28 U.S.C.
§ 2254 is TENTATIVELY DENIED. The clerk will be
instructed to prepare a judgment dismissing this claim with
prejudice. Althoush ‘lenry’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 wil! 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

22a

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 200S.

/

a

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.

1. FACTS

The conviction at bench grew out of the killing of Andre
Johnson who was shot trom 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 Alex,

respectively). Stated most favorably to respondent as it must

24a

(People v. Johnson (1980) 26 Cal.3d 557, 576; People v.
Mosher (1969) 1 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 pvinting it at appellant said, “Give me everything you
have or I’!] 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 meeting which took place in
his house, appellant complained that he had been robbed of
$400 at gunpoint and offered two “hubbas” (rock cocaine) to
Brewer 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 nfle 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. Simultancously 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 appellant 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 scat, 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. Ihe 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. Appellant indicated that he was willing to pay
but added since Brewer had killed the wrong man, the onginal
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 changed.”

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? [%) A. Just - - Lee told - - Lee Francis [Brewer] told him,
Robert Henry that, uh, he had tooken care of that. [§] Q. And what was
said to him by Mr. Henry? {%] 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” (9| 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? [%| A. Robert Henry [%] Q Asked him what? [9] A.
Exactly what had happened, and Lee told him, replied to him, ‘Well, you
don't have to worry about him no more. ’’ (%} Q And did they discuss
the payment” ("| A Yes They indicated that, because he had hit-shot the
wrony 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 testificd 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 “I.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 parolc.* Appellant raises numerous issues
on appeal which are discussed below.

Il. 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 intent 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 U.S.
307, 319.) As summarized in People v. Johnson, supra, 26
Cal.3d at p. 578, the court must review the whole record tn the
light most favorable to the judgment below to determine
whether it discloses such substantial evidence that a reasonable
trier of fact could tind 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: [%} “Q. Did you have any
problems with anybody on Gateway Drive about that day that time? [{|
A. Yes, I did. [1] Q. Who did you have problems with? [9] It was Robert
Henry, Jester Taggart, Jeffery Henry and Alex Taggart. [{] Q, Where
were you when this first started to occur, this probiem?. [§| A. On
Gateway and Kounds Street. [9] 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? [%] A. Yes, I was trying to, yeah. [%| Q. And
what did - - what did Mr. Henry tell you? (%) A. He told me that I was
gonna die; he didn’t want to hear it. [T] Q. Excuse me. | 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. {#] Q. About the incident? [9%] A. Yes, I did
(1) Q. And he said he didn’t want to hear it? [9] A. Yes. [§$] Q Did
Jester Taggart say anything to you? (9) A. No, he just kept on saying that
I was going todie. [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 ] was going to die. [9] Q. They continued to tell you
that you were going to die? |") A. Over and over, yes. [1] Q. And who
specifically said that? [1] 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 nfle and drove to the scene of the
crime. While there, appellant pointcd 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, 1s 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 Brewcr’'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
outright 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 foresceable.

B. Alleged Evidentiary Errors

(1) Exclusion of Pnor 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 foreseeable consequence doctrines to this case. After
a hearing the tral 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 J] 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
proftered evidence was admissible under Evidence Code section
1101, subdivision (b), in order to show motive and intent; and
(2) the trial 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.c., 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 1s 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) 70 Cal.2d 171, 186-187, see also

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
u 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 is 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. . . . [J] 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 ateveryune. Jeffrey 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 Turmer.

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, Tumer 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 (and 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? (4) Q. Just before the shooting. [1]
A. Say, ‘Watch out, he’s gonna shoot.’ [4] Q. Who said that? [9] A.
Sounded like Jester Taggart. {f] Q. Did Mr. Johnson say anything before
he was shot? [%) 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’? [7] A. He wasn’t faced towards the blue car. He was faced
towards the street. [7] 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’
("} A. ‘Yeah.’ [9] Q. ‘And what did he say?’ [ij A. ‘He said, “I could take
at least one.”’ [1] Q. Did I ask you then: ‘Who was that - - who were those
directed towards?’ What was your answer? [9%] A, ‘Jester Taggart.’ [9]
Q. DidI ask you: ‘Where was Jester Taggart?’ ("| A. ‘On the corner of
Simonton Street.’ [4] Q. Did] ask you: ‘In relationship to the car where
the shots came from, where was he?’ What did you say? [9] Right here?
{tf} Q Yes. [G9] A. ‘In relationship’ --{%] Q And I asked you: ‘How close
to the car was he?’ [91] A. ‘Abvut 15 feet.’ (§) Q. ‘So, Mr. Johnson says
to Jester Tagyart 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 tnal
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 contemporancous 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 trial
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 rcasonably 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 1s no indication that he or she is relying on Fifth

11. All CALJIC instructions referred to are from the fourth edition
unless otherwise noted

37a

Amendment nghts, 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 tollowing instruction, modcled closely atter 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
commussion, 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 [9] 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 accusatury 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: “|U]nless 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) | 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 relies 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
crror 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.e., Johnson) took place by mistake or inadvertence.
Consequently, 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 appellant’s

40a

house to claim his bounty for carrying out that contract.

The cvidence cited by appellant to prove that Brewer
intentionally shot Johnson (1.e., Johnson stood but a few feet
away; the projectones 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 tral
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, tn. 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 /1ammond 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 Hammond, 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 1s 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
circumstances it 1s 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 encouraged. 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 criticizing the forcsccable 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 tried 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.... [4] 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. His 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.) It is, of
course, elementary that under the doctrine of stare decisis we are
bound to follow the decisions of our Supreme Court. (Auro
Equity Sales, Inc. v. Superior Court (1962) $7 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. (Sce 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
rclating that evidence to any legal defense to the charged cnmes.
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.=

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

14. The ALI formulation reads as follows: “A person is net

45a

Against this background the court then concluded that (1) the
AL] 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 cither to appreciate the cnminality
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 trom 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 198]
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 o1
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 rcturn 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 is 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

Il. 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, appcllant 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, carnes 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 1n 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 tal 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: [{]] Onc, that the murder was intentional; and
[{]] Two, that it was carried out for financial gain.”

Appellant would have us agree that the trial 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 Bigelow 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 fo the appellant,
financial motivation was not an issue. //is crime, if any, was as
an aider and abettor of an intentional murder carricd 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.) If aterm has a technical meaning
peculiar to the law, the court on its own motion must supply the
appropriate 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 announccd 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 burgiaries, 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 1s the
consideration for, or an essential prerequisite to, the financial
gain sought by the defendant.”” (/d., at p. 751.)

In People v. Hloward, 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 Bige/ow 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 tailing 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 Fuentes 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 commission of robbery) that if defendant were an
aider and abettor, “it would have to tind that he ‘intentionally
aided . . . the actual killer in the commission of the murder of

S3a

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 tnal 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.”
Morcover, 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 resol ved
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 lier 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 rendcring 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 promotc
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 socicty 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 ts 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. [4] The fact that
he did not act as rationally as someone else might have acted ts to be
expected, certainly in murder Murder for htre is not a rational act. It is
not rational under any sort of circumstances. (| Tecan 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. ("| 1 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, P_J.
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, J intend to do what the law directs me
to do, and that is for the protection of society. You may have given all the
farious factors of this man’s abiltty, his personality and his intellect. Those
are going to be with him for his life. ["| He 1s a danger to society now and
that ndicates there is going to be a case in the future. Therefore, Lam 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 posstbility 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 Descnption Notes
10/08/ Petition for wnt of By Pro per Pctnr
1996 habeas corpus filed Robert Henry

p—. —— —4
01/28, Petition for wnt of See Cites
1997 habeas corpus denied

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2004 Judicial Council of Califormia

S7a

Filed June 8, 1989

ORDER DENYING WRIT OF HABEAS CORPUS

No. SO10192

IN THE SUPREME COUR]
OF THE STATE OF CALIFORNIA

IN BANK

IN RE ROBERT HENRY
ON
HABEAS CORPUS

Petition for wnt of habeas corpus DENIED for failure to allege
sufficient facts. (See /n re Swain (1949) 34 Cal.2d 300, 304.)

Chief Justice

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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 Attorncys _ Lower Court

DOCKET (REGISTER OF ACTIONS)

THE PEOPLE v. HENRY, ROBERT
Case Number S007648

Date Descnption 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1324%3A3. Public record. Not legal advice.