P. v. Raymond

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Filed 4/16/07 P. v. Raymond CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW WAYNE RAYMOND,
Defendant and Appellant.
E037922
(Super.Ct.No. RIF116893)
OPINION
THE PEOPLE,
Plaintiff and Respondent,
v.
DARELL LEE BUTLER,
Defendant and Appellant.
E039781
(Super.Ct.No. RIF116893)
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed.

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Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant Matthew Wayne Raymond.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant Darell Lee Butler.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,
Gil Gonzalez, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy
Attorney General, for Plaintiff and Respondent.
Defendants and appellants Matthew Wayne Raymond and Darrell Lee Butler
appeal their convictions of grand theft. They contend the court erred in certain
evidentiary rulings and in giving jury instructions. We affirm.
FACTS
On May 10, 2004, Steven Statter was sitting in a parked automobile in the parking
lot of an apartment building. Defendants approached the vehicle and Statter lowered the
window. Defendant Butler told Statter that he wanted to buy drugs. Statter said he did
not have any drugs. Defendant Butler reached in, grabbed $1,720 in cash from Statter’s
shirt pocket, ripping the pocket. Defendant Raymond was standing right behind Butler.
Defendants were charged with robbery. (Pen. Code, § 211.)1 The information
alleged that each defendant had personally used a deadly or dangerous weapon.
1 All further statutory references are to the Penal Code unless otherwise indicated.

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(§ 12022, subd. (b)(1).) The information alleged that defendant Raymond had a prison
term prior. (§ 667.5, subd. (b).) Defendant Butler was alleged to have suffered seven
prison term priors (§ 667.5, subd. (b)), a strike prior (§§ 667, subds. (c) & (e)(1),
1170.12, subd. (c)(1)), and a prior serious felony conviction (§ 667, subd. (a)).
The jury found each defendant guilty of the lesser included offense of grand theft.
The jury found the weapon allegations not true.
Defendant Raymond admitted his prior prison term allegation. Defendant Butler
admitted his seven prior prison terms and a serious or violent felony conviction.
Defendant Raymond was sentenced to three years in state prison (two years for grand
theft, plus one year for the prior prison term) and defendant Butler was sentenced to 12
years (six years – double the aggravated term – for the grand theft, plus one year each for
six prior prison terms). The court struck one of defendant Butler’s seven prior prison
term allegations.
DISCUSSION
1.
THE EXCLUSION OF AN INCONSISTENT STATEMENT
AS TO AN UNAVAILABLE WITNESS WAS HARMLESS
Both defendants contend that the trial court erred in denying their request to
present inconsistent statements of a witness, Jim Jones, who was unavailable at trial.
A. Factual Background
Victim Statter had planned to meet Jim Jones and Javier Anguiano at the
apartment complex. When he arrived, he saw Jones and Anguiano talking to defendants

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in the parking lot. Not wishing to talk to defendants, Statter parked his vehicle on the far
side of the parking lot. Defendants then approached the vehicle where Statter had parked.
Defendant Butler grabbed the money and both defendants fled.
Statter, with Anguiano and Jones, went to defendant Raymond’s residence to
confront him about the theft. The police were already there.
In his police interview, defendant Butler admitted that he was in the parking lot,
talking with defendant Raymond, Anguiano, and Jones, at the time that Statter drove up.
He admitted taking the money.
On the date of the theft, police also interviewed Jones. Jones told Officer Hutzler
that he saw the confrontation between defendants and Statter. Nearly a year later, in
February 2005, Jones apparently told a prosecution investigator that he did not actually
see the incident. He said that he and Anguiano were inside an apartment at the time of
the theft.
Anguiano testified at trial that he saw the incident. Jones did not testify.
Defendants wanted to introduce Jones’s statements to the investigator in 2005, i.e., that
he and Anguiano were inside an apartment and not in the parking lot when the theft
occurred. Apparently, defendant wanted to use the statement to undermine Anguiano’s
credibility that Anguiano had seen the theft; presumably, Anguiano would not have seen
it if he were inside an apartment with Jones.

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B. Any Error Was Harmless
The People concede that defendants should have been allowed to introduce this
evidence. Whether or not the court erred, however, the exclusion of the evidence was
harmless by any standard of prejudice.
Statter testified that defendants accosted him and that defendant Butler took his
money. Statter testified that immediately thereafter, defendants ran away, got into a car,
and sped out of the parking lot. Police found defendants at defendant Raymond’s
residence. Defendant Raymond was hiding in an enclosed area near the pool. The
money was found in defendant Raymond’s garage. Defendant Raymond and defendant
Butler each admitted to police that they had taken the money. Defendants each also told
police that Jones and Anguiano were with them, conversing, in the parking lot just before
they went to accost Statter.
Evidence that Jones had made conflicting statements cut both ways: He told
police that he had witnessed the theft. His later statement (that he had not) was
inconsistent only to the extent that he had already told police that he saw defendants
commit the crime. The only other point of contact with the issues in the case was
whether Jones’s statement, that he and Anguiano had been inside at the time of the theft,
cast doubt on Anguiano’s testimony that he had in fact seen the theft take place. But
defendants themselves told police that they were in the parking lot with both Jones and
Anguiano immediately before accosting Statter, defendants themselves each had
confessed to committing the crime, Statter’s testimony identified both defendants as the

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thieves, and the money was found at defendant Raymond’s residence. Whether Jones
and Anguiano also saw the incident was insignificant in light of the remaining evidence.
Under either the Watson (People v. Watson (1956) 46 Cal.2d 818, 836) or
Chapman (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d
705]) standard of prejudice, any error in failing to admit the proffered evidence was
harmless.
2.
No Instructional Error
A. The Contention
Defendant Raymond raises the contention that the trial court’s instruction on
aiding and abetting, CALJIC No. 3.01, was incorrect. He argues that the instructions
improperly permitted the jury to find him guilty without sufficient evidence that he aided
and abetted defendant Butler.
CALJIC No. 3.01, as given by the court, provides:
“A person aids and abets the commission of a crime when he or she: [¶] (1) With
knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or
purpose of committing or encouraging or facilitating the commission of the crime, and
[¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the
crime. [¶] Mere presence at the scene of a crime which does not itself assist the
commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge
that a crime is being committed and the failure to prevent it does not amount to aiding
and abetting.”

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Section 31 defines the principals to a crime, including aiders and abettors: “All
persons concerned in the commission of a crime, whether it be felony or misdemeanor,
and whether they directly commit the act constituting the offense, or aid and abet in its
commission, or, not being present, have advised and encouraged its commission, and all
persons counseling, advising, or encouraging children under the age of fourteen years,
lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion
the drunkenness of another for the purpose of causing him to commit any crime, or who,
by threats, menaces, command, or coercion, compel another to commit any crime, are
principals in any crime so committed.”
Defendant Raymond makes a purported distinction between “aiding,” which he
defines as assisting or supplementing the efforts of another, and “abetting,” which he
defines as inciting or encouraging. (Citing People v. Elliott (1993) 14 Cal.App.4th 1633,
1641-1642 (Elliott).) He argues that section 31 requires proof that he aided and abetted
the crime, i.e., that he both assisted and that he encouraged or incited his codefendant in
the commission of the crime. CALJIC No. 3.01, he argues, impermissibly allowed a
finding of guilt as an aider and abettor if he aided, promoted, encouraged, or instigated
the commission of the crime, rather than requiring both that he aided the commission of
the crime and that he promoted, encouraged, or instigated the crime.
B. Defendant Waived His Right to Claim Error in the Instructions
Defendant Raymond did not object to the instruction below. In fact, defendant
requested the instruction. If he believed the instruction needed amplification or
clarification, the burden was on him to request such instructions. (People v. Dennis

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(1998) 17 Cal.4th 468, 514.) “Failure to do so waives the claim of instructional error on
appeal.” (People v. Fraser (2006) 138 Cal.App.4th 1430, 1452.)
Defendant urges that the instruction, by assertedly not requiring a finding that he
both aided and abetted the crime, resulted in the failure to instruct on a necessary element
of the crime, thus affecting his “‘substantial rights’” to due process of law. (See § 1259;
People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6.) We do not consider that defendant’s
“substantial rights” were affected by instructional error, inasmuch as his interpretation of
“aid and abet” is faulty, as is shown by our analysis below.
C. The Instruction Was Proper
Defendant’s contention has already been rejected on the merits in other cases:
“Like the defendant in Campbell[2] Booth relies heavily on [Elliott] where the
court observed that a defendant who only encouraged felons to run away and hide after
the commission of the crime but had not actually harbored, concealed, or aided them did
not fit within the definition of an accessory after the fact as set forth in Penal Code
section 32. [Citation.] However, such reliance is misplaced. Campbell clearly points out
that, while Elliott drew from case law discussing aiding and abetting, it ‘did not purport
to construe section 31 or the phrase “aid and abet.” Moreover, although Elliott and the
cases cited therein recognize a distinction between the terms “aid” and “abet,” they do
not suggest that the phrase “aid and abet” in section 32 [sic] requires separate findings
2 People v. Campbell (1994) 25 Cal.App.4th 402 (Campbell).

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that one assisted and encouraged the perpetrator of a crime.’ (Campbell, supra, 25
Cal.App.4th at p. 412.)
“Campbell explains that the reason our courts have been careful to draw the
distinction between ‘aiding’ and ‘abetting’ is not because there is a two-pronged test, but
to emphasize that one cannot be convicted of being an accomplice by conduct alone, but
must also share the principal’s purpose or goal to commit the crime, i.e., there must be a
union between act and intent. For that reason, the term ‘abet,’ which requires a guilty
state of mind, has been recognized as an indispensable element of accomplice liability.
(Campbell, supra, 25 Cal.App.4th at p. 414.)
“While accomplice liability cannot be predicated on conduct absent the required
mental state, one can be guilty as an accomplice (if he shares the goal of the perpetrator)
without having actually assisted the commission of the offense, e.g., by ‘instigating,’ or
‘advising’ the perpetrator to commit it or by having been ‘present for the purpose of its
commission.’ (See Campbell, supra, 25 Cal.App.4th at p. 411, and cases cited.)
“Like the court in Campbell, we note that the instruction attacked here as
insufficient was modeled after the one proposed by the California Supreme Court in
People v. Beeman (1984) 35 Cal.3d 547, 561 [199 Cal.Rptr. 60, 674 P.2d 1318]. Review
in Campbell was denied on August 17, 1994. (25 Cal.App.4th at p. 414.)
“We adopt the reasoning of Campbell to conclude that CALJIC No. 3.01
adequately instructs the jury on the concept of aiding and abetting. . . .” (People v. Booth
(1996) 48 Cal.App.4th 1247, 1255-1256.)

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We find Booth and Campbell persuasive. Elliott is inapposite. The instruction
given was proper.
3.
DEFENDANT BUTLER’S SENTENCE WAS PROPER
A. Cunningham v. California
In Cunningham v. California (Jan. 22, 2007, No. 05-6551) 547 U.S. ___ [127
S.Ct. 856] (Cunningham), the United States Supreme Court held that the California
Determinate Sentencing Law (DSL) violated an accused’s right to a jury trial, to the
extent that the DSL permits a judge, rather than the jury, to find facts to support imposing
the aggravated term. “[T]he Federal Constitution’s jury-trial guarant[y] proscribes a
sentencing scheme that allows a judge to impose a sentence above the statutory
maximum based on a fact, other than a prior conviction, not found by a jury or admitted
by the defendant.” (Cunningham, supra, 547 U.S. at p. ___ [127 S.Ct. at p. 860].)
Under the DSL, the aggravated sentence is not the “statutory maximum,” because
California courts are required to impose the middle term unless the court (sitting without
the jury) finds facts, based upon a preponderance of the evidence, either in mitigation or
aggravation of the offense. (§ 1170, subd. (b).) The middle term is: the “statutory
maximum” pursuant to Cunningham and Blakely v. Washington (2004) 542 U.S. 296
[124 S.Ct. 2531, 159 L.Ed.2d 403]; because it is the maximum sentence which can be
imposed in the absence of additional factual findings. (Cunningham, supra, 547 U.S. at
p. ___ [127 S.Ct. at p. 860].)

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B. The Trial Court Properly Selected the Aggravated Term
Here, the jury found defendant guilty of a lesser included offense—grand theft.
The jury found not true the allegation that defendant was armed with a deadly weapon.
Defendant expressly waived his right to a jury trial on his prior conviction allegations.
Defendant thereafter admitted seven felony convictions which had resulted in separate
prison terms, and he admitted an allegation that he had suffered a prior serious or violent
felony conviction for residential burglary, a strike prior.
At sentencing, the court acknowledged Blakely, supra, and opined that it had
discretion to impose the aggravated term. Defendant had numerous prior convictions. In
almost every instance, as defendant had admitted on the record, he had failed after each
release on parole to remain free of prison custody for a period of five years. The court
found that defendant’s prior performance on parole was thus unsatisfactory. The court
characterized defendant’s convictions as both numerous, which was patent, and of
“increasing seriousness.” In chronological order, defendant’s convictions were for:
possession of a dangerous weapon, 6/23/00; spousal abuse, 5/4/98; petty theft with a
prior, 10/7/94; possession of a controlled substance, 12/18/91; vehicle theft, 5/22/89;
possession of a controlled substance, 6/17/86; and residential burglary, 2/23/84; which do
show something of a pattern of increasing seriousness (greater violence). Defendant also
expressly admitted that his residential burglary conviction constituted a prior strike
conviction. Here, all of the factors which the trial court considered in aggravation of the
sentence were matters encompassed within defendant’s admissions on the record.

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Accordingly, the trial court’s selection of the aggravated term, and sentencing as a
second striker under the Three Strikes Law, did not violate Blakely or Cunningham.
DISPOSITION
The judgment as to each defendant is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKINSTER
J.
We concur:
/s/ RAMIREZ
P. J.
/s/ RICHLI
J.

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