P. v. Romero

Filed 11/29/05 P. v. Romero CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JOSE DAVID ROMERO, Defendant and Appellant.

F045576 (Super. Ct. No. F03901030-7) OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Seven individuals were prosecuted for the events leading up to and ending with the murder of Donald “DJ” Hunter. Ramiro Roman pleaded guilty before trial to one count of robbery in return for his truthful testimony against the other defendants. Jose David Romero (defendant herein), Martin Castro, and Alfred Cruz were tried together for the first degree murder of Hunter. Cruz pleaded guilty to one count of robbery at the close of the evidence at the joint trial. His plea was predicated on his promise to testify truthfully about the events surrounding Hunter’s death at the upcoming murder trial of Stacy Dyer, Daniel Ortega and Jesus Lopez. The jury convicted defendant and Castro of first degree felony murder. Subsequently, Dyer, Ortega and Lopez were jointly tried and convicted of first degree murder with special circumstances.

In this case we consider the appeal of defendant Romero. He claims the trial court erred in dismissing the robbery charge, the prosecutor committed misconduct during closing argument, instructional error, ineffective assistance of counsel, and an error in calculating his credits. Except to modify defendant’s custody credits, we affirm.

FACTS

Nineteen-year-old Hunter owned a 2000 pickup truck. He added special equipment to his truck and the vehicle was known around town. On the evening of March 21, 2002, Hunter left his home and drove in his truck to the home of his friend Carlos Rodriguez. He and Rodriguez went out to dinner. Hunter had $5 with him. They returned to Rodriguez’s house and remained there until approximately 1 a.m. Hunter left and said he was going home.

Paul Bedrosian knew Hunter and was familiar with the truck that he drove. Bedrosian saw him alone in the vehicle driving his truck in the direction of his (Hunter’s) home at approximately 1:15 a.m. on March 22, 2002.

Roman was at his home on the evening of March 21, 2002. His friend Cruz was at Roman’s home “kicking back.” As Roman was getting ready to leave to walk over to get his girlfriend Delores (Cruz’s sister), Stacy Dyer walked up, asked for Roman, and said that “Chuey” (Jesus Lopez) wanted to see him.

After Roman called to Cruz, the two went outside and saw Lopez standing next to a truck. Roman asked Lopez where he got the truck. Lopez said he “jacked” the truck and the victim was being held in the bed of the truck under the truck bed cover.

Roman left and met his girlfriend Delores. As they walked back to Roman’s house, he told her what was happening. Delores was not pleased. When they arrived back at the house, Lopez and Dyer were standing by the bed of the truck. Roman told them to leave because his mother was asleep in the house. Lopez said he was waiting for someone and was going to take the truck to Mexico.

The truck remained in front of the house for approximately 30 minutes. Roman then moved the truck to the other side of the house so it would not be near his mother’s window. Roman returned inside the house and told Delores he was going to take the stereo out of the truck. She told him he was dumb. Roman grabbed tools, walked outside, and put on gloves. Lopez did not want Roman removing the stereo from the truck. Roman removed the stereo and took it to his room.

Roman went back outside and looked through the truck for more property to steal. Lopez told Roman not to take the speakers. Roman decided he wanted the speakers, but agreed to give them to Lopez. Roman removed the speakers and amplifiers from the truck. He took them out of the truck with Cruz’s help. Cruz helped him carry the items to his room.

Roman returned to the location of the truck, where Cruz had already returned. Lopez and Dyer were also standing by the bed of the truck. Cruz told Roman they had gotten the wallet from the victim, Hunter, after Lopez had demanded it from Hunter; Cruz then hit Hunter, closing the truck bed cover over him. Lopez handed the wallet to Roman. Roman removed the papers from it and gave the wallet back to Lopez.

Roman returned inside. Cruz and Lopez came into the room and said they were leaving. Roman followed them outside. A light blue van was there with four additional individuals. The four people were defendant, Daniel Ortega (Dyer’s boyfriend), Castro, and another male. Ortega asked Lopez, “Where’s the stuff at?”

Ortega, Dyer, and the other male got into the truck. Defendant, Lopez, and Castro drove off in the van. When Roman and Cruz returned inside, Delores asked what they were going to do with Hunter. Roman said he did not know.

Juan Hernandez lives in rural southwest Fresno. He usually leaves for work between 4 and 5 a.m. On the morning of March 22, 2002, after leaving for work, he saw a van stopped at a stop sign. The van was followed by a very nice Chevrolet truck.

Harry Stackhouse also lives in rural southwest Fresno. On the morning of March 22, 2002 he heard several gunshots. Seconds later, he saw a blue van speed away. He then saw smoke. Another neighbor also reported hearing gunshots and seeing smoke. His wife called law enforcement. The smoke was not unusual because cars are frequently dumped and burned in the area.

Deputy Sheriff David Cunha received a call at 5:30 a.m. of a burning vehicle at Muscat and West in Fresno County. He arrived at the scene and found a burning truck. There was a burned human body in the bed of the truck. The victim, Hunter, had been shot three times in the head. The cause of death was perforation of the brain by multiple gunshots. The burns on the body were post mortem. The autopsy physician could not tell if the victim suffered any blunt force injuries because the body was too badly burned.

At approximately 8 a.m. that same morning, Beu Vang arrived at his business. There, he found a cellular phone in the parking lot. He picked it up and brought it inside, believing that it belonged to one of his customers. When the phone rang, Vang answered it. The person calling was Hunter’s mother, looking for Hunter. Law enforcement officers confiscated the phone later that morning.

Roman switched the speakers from Hunter’s truck that had been placed in his room with some less expensive ones. Hunter’s speakers and one of the amplifiers were placed in the basement of Roman’s home. Cruz took one of the amplifiers.

Roman got a call from Lopez. He said Hunter “ate dirt.” Lopez came by and took the “switched” speakers. Roman destroyed the papers that had been in Hunter’s wallet.

A couple of days later, Roman saw the defendant with Cruz’s brother, Robert, at Kmart. Roman asked what had happened. Defendant said that Dyer killed Hunter. Defendant said that he, Lopez, and Castro waited in the truck. He also said that Hunter had been killed and then burned. Robert Cruz had the amplifier that he had purchased from his brother. He gave the amplifier to law enforcement when they spoke to him.

Law enforcement conducted interviews and issued search warrants. The speakers and one of the amplifiers were found in the basement of Roman’s home. The serial numbers and/or brand and model numbers on the stereo equipment found in the basement matched the stereo equipment boxes retrieved from Hunter’s home.

Defendant was one of the last individuals arrested. He was questioned by authorities. At first he denied knowing anything about the murder. He also denied having a conversation with Robert Cruz at Kmart. Eventually, he acknowledged that he spoke to someone at Kmart and then said that he was at the murder scene. He claimed that he rode in the blue van with Ortega to the house of his uncle (Lopez). Ortega was paged by Dyer. They followed the truck to the country. He got out of the truck and was instructed to be a lookout. He then got back in the van. When he got in the van there were three rims from the truck in the van. He heard gunshots and then Dyer got in the van. The truck was on fire and Dyer had a gun in her hands. While acknowledging that he was present at the scene, he denied knowing what was going on--in particular he denied knowing that someone was going to be murdered.

Alfred Cruz testified on his own behalf before he entered his guilty plea. He admitted taking items from Hunter’s truck, but denied going to the murder scene. Cruz testified that defendant got out of the van at Roman’s house. He testified that defendant said to him that they were going to tie up the victim and take off the rims. Cruz said he was not going to go with the group and defendant said “you’re a little bitch.”

Castro presented a defense that he was not present at any time prior to or during Hunter’s murder. He claimed he was at home asleep.

DISCUSSION

I. Dismissal of the Robbery Count

Defendant was charged in the information with one count of murder, three special circumstances, and one count of robbery. The special circumstances were dismissed by the court.

In his opening statement to the jury, defense counsel admitted that defendant was at the scene of the crime but defendant did not know that Hunter was alive and present underneath the truck bed cover. Defendant believed he was aiding a theft from the car. Thus, argued defense counsel, defendant was not guilty of murder.

After all sides rested, the People asked the court to dismiss the robbery count.^[1] Defendant objected to the dismissal, arguing that his entire case was tailored around the defense that he was only a lookout to some type of stripping of the car and had nothing to do with the victim or a robbery. Defense counsel argued that by taking the count out the jury was left without a count on which they could convict that would fit with the defense. He claimed that the dismissal by the People would thwart the defense and asked that the robbery as well, as a lesser included offense to robbery, remain in the case.

The prosecutor claimed that the defense had not been misled that the case proceeded on a robbery theory because robbery was alleged as one of the special circumstances and as a basis for the felony murder. He asserted that the felony murder was proceeding on a robbery, carjacking, and/or kidnapping theory and the jury may be confused because only robbery was charged as a separate offense.

The court commented that it had rejected giving instructions on the lesser offenses of grand theft and vehicle theft for felony murder based on robbery because the lesser offenses were not felonies inherently dangerous to human life that could qualify as the basis for a second degree murder charge. The court did say it would instruct the jury on the lesser included offenses to the count charging only a robbery; but as it turned out, the jury received no such instruction because of the dismissal of the robbery count.

Defense counsel argued to the court that the defense has been gutted and he did not believe the dismissal was done in the interest of justice.

Prior to argument by counsel, the court informed the jury that the robbery count had been dismissed.

Defense counsel argued that defendant was guilty of being an accessory after the fact or grand theft auto but not guilty of murder because he did not have the specific intent to kidnap, rob, or carjack Hunter. Defense counsel asserted that defendant did not know that Hunter was there. He told the jury that because the prosecutor dismissed the robbery count the case was now an all-or-nothing case for the jury.

On appeal, defendant makes a lengthy attack on the trial court’s decision to dismiss the robbery count, claiming it resulted in denial of his constitutional right to a fair trial. Initially he attacks the dismissal as not complying with Penal Code section 1385 because the court failed to state reasons for the dismissal on the record, the court acted arbitrarily, and the dismissal was not done in furtherance of justice. Defendant repeatedly claims that the dismissal of the robbery count resulted in the removal of the lesser included offense instructions from the jury’s consideration and deprived him of presenting a complete defense theory to the jury in closing argument. He claims “the prosecutor’s misconduct misled appellant into losing the defense theory he had established. This ambush of his defense ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Again he argues he was denied a meaningful opportunity to present a complete defense because his defense was not supported by instructions on the defense theory of the case. He also contends he was deprived of the effective assistance of counsel because his counsel was prevented from fully arguing the defense theory of the case by urging a conviction for theft.

Stripped of hyperbole, defendant’s argument is not based on his desire to have the robbery count reinstated so he can be tried based on the robbery charge, but is instead based on his perception of unfairness that resulted in his murder conviction. His argument is one of fundamental fairness. We assume for the sake of argument that the trial court did not follow the procedural requirements of Penal Code section 1385 when it dismissed the robbery charge and shall analyze the harm caused by this dismissal to the murder conviction.

To start, we reject defendant’s argument that the error requires reversal per se. Assuming for the sake of argument that a Penal Code section 1385 dismissal without a statement of reasons is an invalid order requiring per se reversal, reversal would only apply to the “erroneously” dismissed charge. Per se reversal of the order dismissing the robbery charge does not carry over into the felony murder conviction. The dismissal order did not affect the felony murder conviction except to the extent that the dismissal had an impact on the fundamental fairness of the trial. The standard of review is not one of per se reversal.

Also, defendant cannot base his argument of error on the fact that the court did not give lesser included instructions to the underlying crime of robbery contained within the felony murder charge. “Although a trial court on its own initiative must instruct the jury on lesser included offenses of charged offenses, this duty does not extent to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine.” (People v. Silva (2001) 25 Cal.4th 345, 371.)

The chief complaint of defendant echoed throughout his brief is that he was deprived of the opportunity to argue that he was guilty of only a theft and not murder. Defendant was not deprived of this argument by the dismissal of the robbery count. Defendant was allowed to argue, and did argue repeatedly, that he was not guilty of murder but was instead guilty of theft.

Defendant argues that he was misled in his defense by having the robbery charged and then dismissed. Defendant claims that the jury would not have heard evidence that he thought he was aiding a theft if defense counsel was not misled into believing that he could strategically argue that defendant should be found guilty of theft but not of murder. Defendant’s defense at trial was that he did not have knowledge of Hunter’s presence. Defendant did not argue below that he would have proceeded differently if the robbery had not been charged. In light of defendant’s pretrial statement to law enforcement that he was present at the scene of the murder, and the lack of any legally sound argument that would preclude the admission of this statement against defendant, we fail to see any other viable defense other than one of lack of knowledge. Defendant has not offered any plausible basis upon which we should find that he was misled in his defense.

Defendant argues that the force of his argument was seriously undermined by the failure to have instructions supporting his defense. Again, defendant’s defense was that he did not have knowledge of the victim’s presence at the time he aided and abetted the taking of items from the truck. The instructions clearly required the jury to find that defendant had the specific intent to aid and abet either a robbery, carjacking, or kidnapping. Each of these crimes clearly required the known presence of the victim and direct actions against the victim. The instructions required the jury to determine if defendant had knowledge of Hunter’s presence, thus encompassing the question of whether defendant lacked knowledge of his presence.

The deprivation to defendant caused by the dismissal of the robbery count was that if the jury believed that defendant was not aware of Hunter’s presence the jury had no available alternative except to acquit defendant. We find the lack of any alternative verdict was not prejudicial. “Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.” (People v. Lewis (2001) 25 Cal.4th 610, 646; People v. Horning (2004) 34 Cal.4th 871, 906.) Assuming that the dismissal of the robbery count resulted in a deprivation of the lesser included theft offense instructions, any error was harmless. The jury necessarily resolved unfavorably the question of whether defendant had knowledge of Hunter’s presence under the felony-murder instructions given.

Finally, we fail to see how the all-or-nothing choice given to the jury here affected the reliability of the verdict. Unlike cases where a jury might be tempted to enter a finding of guilt rather than acquitting a defendant because it believes that the defendant had significant involvement in a serious offense, yet did not meet all the requirements necessary for a finding of guilt to the only charge before the jury, the dichotomy here between murder and theft does not carry the same temptation. (See Beck v. Alabama (1980) 447 U.S. 625; Schad v. Arizona (1991) 501 U.S. 624, 646-647.) We can see no basis to assume that a jury believing that a defendant is guilty of only a theft would behave so irrationally as to convict him of murder because it was loathe to acquit him and set him free.

Defendant has failed to demonstrate that error, if any, in dismissing the robbery count deprived him of fundamental fairness requiring reversal of his murder conviction.

II. Claimed Misrepresentation of the Timeline

Defendant claims that the prosecutor intentionally misrepresented the timeline as to how long the truck was out in the field being stripped before Hunter was shot and the truck was set on fire. He asserts this was prosecutorial misconduct. He also argues that his counsel did not object to the erroneous timeline and, in fact, went along with the prosecutor’s timeline, thus rendering ineffective assistance of counsel. Defendant argues that the misrepresentation of the timeline by the prosecutor, which was adopted by defense counsel, denied him his right to a fair trial. Defendant contends that from the erroneous misrepresentation of the timeline, placing the vehicle in the field for a greater period of time, the prosecutor was able to argue convincingly that defendant, being present at the scene, had to have known that Hunter was in the back of the truck.

Deputy Cunha testified that on March 22, 2002, he was in his car writing reports at around 5:53 a.m. when he received a dispatch of a vehicle on fire. He was later asked if the dispatch was at 5:30 a.m. He replied yes.

Juan Hernandez testified that he usually went to work at “4:00, 5 o’clock in the morning.” He said he left for work on March 22, 2002 at “[l]ike 5:45 in the morning.” The following questioning occurred:

“Q [Prosecutor] When you passed that location sometime after 4:45 you left, did you see any burnt vehicle at that location?

“A No.

“Q Can you give us in just general terms how long it might have taken for you to drive from whatever location you left at 4:45 to arrive at that location?

“A Five minutes.

“Q Five minutes?

“A Yeah.

“Q Or less?

“A Four to five minutes.

“Q Four to five minutes, okay.

“I’m sorry?

“A I never count, but three to five minutes.

“THE REPORTER: Counsel, you are saying 4:45.

“THE COURT: I thought he said 5:45.

“MR. PETERSON [prosecutor]: He said four to five minutes.”

Hernandez saw a blue van followed by a nice Chevrolet truck. He was asked if he was sure there was no burnt truck in the field a few minutes after 5:45 when he left for work. He said no, there was nothing.

Vita Cassano lived near the area where the burned truck was. He got up just before 6 a.m. and was having coffee with his wife. He heard gunfire and saw smoke. His wife called the sheriff immediately.

The prosecutor set forth a timeline for the early morning hours when Hunter was carjacked, kidnapped, robbed, and killed. He prefaced his timeline with the statement that “some of the times here can probably be subject to some argument.” The prosecutor argued that Juan Hernandez saw the van and the truck at 4:30 a.m. on his way to work. He said that Deputy Cunha arrived at the scene of the burning truck at 6:01 a.m.

From this timeline, the prosecutor argued that the van and truck were at the location for a long period of time, over an hour. The prosecutor argued that defendant was lying to police when he said he did not know anything about Hunter being at the scene of the crime and that defendant’s explanation did not make sense in light of the fact that he and the others were in the field for an hour before they left. The prosecutor repeatedly represented that the truck was at the scene for about an hour. Defense counsel did not object to any of the timeline evidence.

Defense counsel did not dispute the timeline of the prosecutor but stated that it did not matter how long they were in the field because defendant was standing some distance away as a lookout and did not know Hunter was in the bed of the truck. Defense counsel portrayed the others as monsters not worrying if they lingered another 30 or 40 minutes in their efforts to try and get the last of the four rims off of the truck, knowing that a complete set was more valuable then having only the three they were able to remove.

The prosecutor talked about the timeline again in his closing argument, again commenting that defendant was there for at least an hour. There were no objections to this argument.

“The law governing prosecutorial misconduct is well established. ‘Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury” [citations] or “is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” [citation].’ [Citations.] A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.]” (People v. Kennedy (2005) 36 Cal.4th 595, 617-618.)

Defendant failed to object to the argument he now claims amounted to prosecutorial misconduct. He has waived the claim for appeal. We also note that while defendant portrays the prosecution’s timeline as being from the “Twilight Zone,” as a dramatic mischaracterization and deceptive, the evidence at trial was anything but clear on the question of timing. We do not infer any deceptive or reprehensible methods on the part of the prosecutor.

Defendant acknowledges that his counsel did not object to the timeline, but asks that we review the question as one of ineffective assistance of counsel.

“‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.’ [Citation.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)

Rather than dwelling on the timeline, defense counsel focused on his argument that defendant was not aware of the presence of Hunter regardless of the amount of time defendant was at the scene. By arguing that the timeline was not important or critical to defendant’s defense, defense counsel may have been seeking to show that the prosecution’s theory of guilt was not convincing and was weak. Such a strategy would be a sound tactical decision. Defendant has failed to show that there could simply not be a satisfactory explanation for counsel’s decision to not dispute the prosecution’s timeline theory.

III. Ineffective Assistance of Counsel in Failing to Object

Deputy Sheriff Sergio Toscana interviewed defendant. Toscana testified at trial to the content of the interview. Many of the questions posed to Toscana involved setting forth what Toscana’s question was to defendant, and defendant’s answer. Included in the questions Toscana asked during the interview of defendant were statements made by Toscana indicating that Toscana had knowledge of defendant’s activities, including the Kmart conversation with Robert Cruz, and admissions defendant made to others.

During closing argument, the prosecutor discussed the Kmart conversation with Robert Cruz and characterized Robert’s statement as independent corroboration.

Defense counsel did not object to the testimony of Toscana and in fact introduced more portions of the interview than the portions brought out on direct examination. Defense counsel did not object to the arguments made by the prosecution regarding the Kmart conversation during closing argument and brought up the Kmart conversation numerous times.

Defendant now claims his counsel was ineffective in failing to object to the inadmissible hearsay evidence contained in the statements made by Toscana to defendant during the interview and in failing to object to all testimony that was admitted regarding Robert Cruz’s statements about the Kmart conversation. He argues that error was compounded by the prosecutor’s reliance on Robert Cruz’s hearsay statement during argument, as well as stating that Robert did not testify because he was afraid.

The principles set forth in our discussion of the previous argument have equal applicability here. Defense counsel did not object to the comments made by the prosecution during closing argument and now complained of on appeal, thus the issue was waived. In addition, defense counsel did not object to the testimony that is now the subject of his argument on appeal. This also results in a waiver.

The question is then if counsel was ineffective. We begin by noting that “[f]ailure to object rarely constitutes constitutionally ineffective legal representation.” (People v. Boyette (2002) 29 Cal.4th 381, 424.) More importantly, defense counsel had tactical reasons for failing to object. Defense counsel pointed out in his argument that the prosecution stated it was going to have Robert Cruz testify as a witness, yet it failed to do so. He forcefully argued that Robert Cruz was “thick as thieves” with the other more culpable defendants and argued that during his statement defendant always protested when Toscana inferred that defendant had involvement in the murder and/or bragged about it to others, including the Kmart conversation. Defense counsel argued that if defendant’s statement to Toscana is taken as a whole, it had a ring of truth to it, and although defendant initially denied involvement, he eventually admitted his involvement but held steadfast to his assertions that he did not know Hunter was in the back of the truck, did not brag about the shooting, and never accepted Toscano’s assertions that he admitted involvement in the Kmart conversation. Defense counsel argued that the Robert Cruz evidence was “baloney” and was offered to shore up a weak case against defendant by the prosecution.

The record demonstrates a multitude of tactical reasons for counsel’s failure to object to the testimony and/or arguments now complained of on appeal. His strategy was based on sound tactical decisions. Defendant has failed to show that there could simply not be a satisfactory explanation for counsel’s decision to not object to the errors now complained of on appeal.

IV. Ineffective Assistance in Not Requesting Instructions

Defendant contends that based on judicial error and/or ineffective assistance of counsel the jury was not instructed on key points crucial to his defense. In particular, he argues the jury was not instructed that defendant had to be aware of Hunter’s presence in order to find him guilty, the jury was not instructed that there must be proof that defendant intended the use of force or fear contained in the predicate felonies before he could be convicted of felony murder, and the failure to give a theft instruction deprived the jury of an instruction highlighting the critical distinction between theft and robbery.

The jury was instructed that an aider and abettor must act with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing or encouraging or facilitating the commission of the crime. (CALJIC No. 3.01) The jury was instructed under the natural and probable consequence doctrine that in order to find defendant guilty of murder it must determine that the crime of robbery, kidnapping, or carjacking was committed and that he personally aided and abetted one or more of those crimes. (CALJIC No. 3.02)

The jury was instructed pursuant to CALJIC No. 8.27 that “[i]f a human being is killed by any one of several persons engaged in the commission of the crime of Robbery, or Carjacking, or Kidnap, all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.”

The crimes of robbery, carjacking, and kidnapping were defined for the jury. Each required the jury to find a use of force or fear against a person (the victim).

We find that the instructions as given were clear in setting forth the requirement that defendant must have the requisite knowledge and intent in order to be convicted of felony murder. Defense counsel was therefore not ineffective in failing to request pinpoint instructions relating to the defense.

We note that although defense counsel requested a theft instruction, the addition of a theft instruction would not have added anything significant to what was already abundantly clear from the instructions given to the jury. In addition, we note that counsel emphasized and re-emphasized his theory of the case to the jury--that defendant did not have knowledge of Hunter’s presence and did not have the intent to aid or abet the predicate felonies. Knowledge of Hunter’s presence was the critical element in defendant’s case; this element was covered more than adequately in the instructions given to the jury. Any alleged failure by the court in not giving a theft instruction to the jury was harmless.

V. Cumulative Error

Defendant contends that the cumulative impact of all of the above errors denied him due process and a fair trial. We have either rejected defendant’s claims of error and/or found any errors, assumed or not, to not be prejudicial on an individual basis. Viewing the errors as a whole, we find that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)

VI. Custody Credits

Defendant contends and respondent agrees that defendant is entitled to an additional five days of presentence custody credits. The abstract of judgment should be corrected to reflect an additional five days of presentence custody credits.

DISPOSITION

The abstract of judgment is ordered corrected to reflect an additional five days of custody credits. The trial court shall forward a corrected abstract of judgment to the appropriate authorities. In all other respects the judgment is affirmed.

______________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

__________________________________

WISEMAN, J.

__________________________________

GOMES, J.

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^[1] The robbery count was not dismissed as to Cruz. He pleaded guilty to robbery prior to arguments to the jury.