Filed 10/25/13 P. v. Soy CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----

THE PEOPLE,                                                                             C070781

                   Plaintiff and Respondent,                              (Super. Ct. No. CRF09-5499)

         v.

NAVEY CHRISTOPHER SOY,

                   Defendant and Appellant.


THE PEOPLE,                                                                             C071638

                   Plaintiff and Respondent,                              (Super. Ct. No. CRF09-5499)

         v.

RENWICK MCKAY DRAKE, JR.,

                   Defendant and Appellant.




         After a six-day joint trial, a jury convicted codefendants Navey Christopher Soy
and Renwick McKay Drake, Jr., of the robbery and assault with a gun of one victim, and
the assault with a gun of a second victim; it also sustained gang enhancements on all


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three counts as to both defendants, and sustained allegations that both defendants had
personally fired a gun. The jury was unable to reach verdicts on two counts; the trial
court declared a mistrial as to the counts, and later dismissed them on the motion of the
prosecutor. As neither defendant raises any issue with respect to sentencing, we note
only that the trial court imposed a determinate term in excess of 37 years as to defendant
Soy, and a determinate term of 24 years as to defendant Drake (after striking the
punishment for the gang enhancement in the interests of justice (Pen. Code, § 186.22,
subd. (g)).1

       We have consolidated their separate appeals for purposes of decision only.
Defendant Soy contends that a special prosecution instruction (to the effect that the
specific intent necessary for the gang enhancement “may be proven” from evidence that a
defendant committed the present offenses in concert with another gang member) was
duplicative, argumentative, and an impermissible mandatory presumption. Defendant
Drake argues that the trial court (or trial counsel) should have included an instruction to
the effect that the jury could not sustain the gun enhancement if it found that he fired the
gun after he reached a place of temporary safety following the robbery. We shall affirm
the judgments in both appeals.

                 FACTUAL AND PROCEDURAL BACKGROUND

       In late November 2009, the robbery victim (who had just cashed his paycheck)
went with two friends to a skateboard park, where he had arranged to buy marijuana from
a football acquaintance. He opened an envelope full of the cash he was carrying,
mentioning that he had just been paid. The defendants were nearby. Defendants


1 We note a typographical error in the abstract of judgment for defendant Drake, which
refers to dismissed count 5 in connection with the second assault conviction, rather than
count 6 on which the jury actually returned its guilty verdict. We will direct the court to
prepare and forward a corrected abstract.


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approached the robbery victim and the dealer. Defendant Soy pulled out a gun and
pointed it at them, telling them not to do anything stupid. He said to the robbery victim,
“You just got paid, give me your money” and told defendant Drake to search the robbery
victim. After defendant Drake took the robbery victim’s money and cell phone, the two
started to walk away. Defendant Soy turned around as the robbery victim followed them,
made reference to his gang (which frequented the nearby basketball courts), called the
robbery victim a “mob bitch,” and fired his gun at him.

       Not believing initially that this was a real gun, the robbery victim and his friends
set out in pursuit after defendants. They heard another gunshot, and one of the friends
dropped out of the chase. The remaining two followed defendants through the parking
lot of a high school, across the street into an elementary school yard, and over a fence
into a post office parking lot, by which point they had lost sight of defendants. They
stood in the parking lot looking around for a minute or two, hearing sounds, and were
about to give up the chase when they saw defendants about 20 feet away appear from
behind some cars. Defendant Soy pointed the gun at the pursuers, who waited until there
was a safe enough distance and then began to follow defendants again. The robbery
victim heard another gunshot. They reached a drug store parking lot.

       The robbery victim shouted at defendants that if they would at least return his cell
phone, he would stop tailing them. Defendant Drake slid the phone in the robbery
victim’s direction. The robbery victim retrieved it and called 911. Defendant Drake was
now holding the gun. Defendant Soy told him to fire it. A bullet hit the trees above the
heads of the robbery victim and the assault victim. Defendants jumped over a wall; their
pursuers stopped the chase. As the assault victim described it, “[W]e were always in
pursuit until we got to . . . the end of the chase where they hopped over the wall and the
police came. We no longer chased them. We didn’t want to hop the wall.” (Italics
added.)


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       As summarized in the briefing, there was evidence of the gang’s activities, and
ample evidence of defendant Soy’s connection with the gang. The only gang evidence
connected with defendant Drake was unspecified gang graffiti found in his bedroom, and
his recorded conversation with defendant Soy in which the former mentioned he would
be validated as a member of the gang as a result of the offenses. In striking defendant
Drake’s punishment for the gang enhancement, the trial court cited his age (just under 16
at the time of the offenses), and the fact that he was not a validated gang member at the
time of the offense (even though he was aware that defendant Soy, whom he idolized,
was a gang member and was committing the offenses for the benefit of the gang).

                                       DISCUSSION

                      I. The Special Gang Instruction Was Proper

       During the jury instruction conference, counsel for defendant Soy acceded to the
prosecution’s request for a special instruction, agreeing that it was a proper statement of
the holding in People v. Albillar (2010) 51 Cal.4th 47 (Albillar) (the trial court referring
to “[West] headnote 20”) after the trial court pointed out that the proposed instruction
used “may,” not “must.”2 The trial court thus instructed the jury, “Specific intent to
promote, further, or assist criminal conduct by gang members may be proven by
establishing that the defendant intended to and did commit the current offense with a
known gang member.”




2 In the text of the opinion associated with that headnote, the Supreme Court
summarized its ruling: “[I]f substantial evidence establishes that the defendant intended
to and did commit the charged felony with known members of a gang, the jury may fairly
infer that the defendant had the specific intent to promote, further, or assist criminal
conduct by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68, italics added.)


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       Defendant Soy3 contends his trial counsel could not have had any tactical reason
for acquiescing to the instruction, and therefore he may challenge the instruction on
appeal. (People v. Moon (2005) 37 Cal.4th 1, 28.) Since an analysis of the merits is
subsumed within a determination of forfeiture, we proceed to address them.

       Defendant Soy insists the instruction is duplicative of the pattern instructions
relating to specific intent. While it is true a trial court has authority to refuse a special
instruction on the ground it is duplicative (People v. Catlin (2001) 26 Cal.4th 81, 152),
defendant Soy fails to cite any authority for the proposition that a duplicative instruction
can result in prejudicial error. Therefore, even if correct, defendant Soy has not shown
any basis for reversal.

       Defendant Soy also asserts the instruction is argumentative. An argumentative
instruction is one that invites a jury to draw conclusions favorable to one of the parties
from specified evidence in the case. (People v. McKinzie (2012) 54 Cal.4th 1302, 1363
[requested pinpoint instruction is argumentative where it designates specified evidence as
“mitigating”]; People v. Benson (1990) 52 Cal.3d 754, 806; People v. Gordon (1990)
50 Cal.3d 1223, 1276.) A proper pinpoint instruction, by contrast, is one which identifies
the theory of a party as it relates to the burden of proof and neutrally invites a jury to
consider whether evidence in the record supports that theory. (People v. Wright (1988)
45 Cal.3d 1126, 1135, 1137-1138, 1141, citing inter alia our decision in People v. Adrian
(1982) 135 Cal.App.3d 335, 338.) The challenged instruction in the present case does not
identify specific evidence at trial, or in any respect invite the jury to draw the conclusion
that there was an intent to commit an offense with a known gang member. It thus is not
argumentative.


3 Defendant Drake, who has not identified any present adverse consequences from the
gang enhancement in light of the trial court striking the punishment as to him, joins in
this argument.


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       Finally, defendant Soy asserts in a conclusory manner that the instruction
“directed the jury to find” the necessary specific intent for the gang enhancement. The
instruction does not do any such thing. It permits, not compels, this conclusion. As the
trial court properly included it in its charge to the jury, the argument is forfeited because
defense counsel thus had a reasonable tactical basis for failing to object to it.4

              II. An Instruction on Temporary Safety Was Unwarranted

       Relying on the fact that defendant Drake did not fire a gun until the parking lot of
the drug store, after he and defendant Soy had eluded their pursuers for a moment in the
parking lot of the post office, trial counsel for defendant Drake argued at trial that Drake
could not be guilty of the gun enhancement (§ 12022.53, subd. (c)) because he fired the
gun after reaching a place of temporary safety: “Now, you’ve been instructed that the
robbery is over once the perpetrator has reached a place of temporary safety, and in this
regard any illegal conduct that you find that [defendant] Drake was responsible for after
that point did not occur during the commission of the robbery. It occurred after. So if the
enhancement . . . tells you that . . . this had to have been occurring during the commission
of a robbery, the discharge of the firearm . . . , it wouldn’t apply once that robbery is
over. [¶] The evidence is uncontroverted that [defendants] reached a position of
temporary safety and then decided to leave. It was only after that that [the victim and his
friend] saw them and began chasing them [again].”




4 It is also questionable whether defendant Soy could possibly establish any prejudice
from this instruction, given the overwhelming evidence of his participation in a gang,
evidence that he invoked the gang’s name in the course of this robbery, and the absence
of any evidence that defendant Drake was a known gang member. It is clear that the
prosecutor wanted the instruction because there was a paucity of evidence establishing
defendant Drake’s gang involvement beyond his participation in the robbery with
defendant Soy who was a known gang member. However, as we find the instruction
proper and the argument forfeited, we do not need to rule on the issue of prejudice.


                                              6
       Defendant Drake now contends that the trial court should have expressly given an
instruction to this effect in the context of the gun enhancement, or trial counsel should
have requested it.5 (The trial court had given an instruction that to be guilty under a
theory of vicarious liability, any knowing assistance or encouragement must take place
before reaching a place of temporary safety, which is a location where a perpetrator “has
successfully escape[d] from the scene, is no longer being pursued, and has unchallenged
possession of the [victim’s] property.” (Italics added.)) The People jump directly to the
question of prejudice, asserting that even if the jury had been instructed on this principle,
it would nonetheless have sustained the enhancement based on a different provision in
the statute on which it was instructed, which imposes vicarious liability for another
principal firing a gun. (§ 12022.53, subd. (e).)

       While trial counsel was allowed to argue this point, and the trial court instructed
on temporary safety in connection with vicarious liability, this was a windfall that did not
entitle defendant Drake to additional instruction on this point. (Cf. People v. Szadziewicz
(2008) 161 Cal.App.4th 823, 834 [unwarranted instruction on true self-defense does not
entitle defendant to instruction on imperfect self-defense].) The robbery and assault
victims expressly did not abandon their pursuit until defendants fled over the wall in the
parking lot of the drug store. At best, they lost sight of defendants in the parking lot of
the post office for a moment (although the assault victim testified that he could still hear
them making sounds nearby), and they had not yet reached the point of calling off their
chase when they saw defendants again. The evidence therefore is insufficient that
defendants ever reached a place of temporary safety in the post office parking lot.
(Compare People v. Russell (2010) 187 Cal.App.4th 981, 986, 992 [the defendant drove


5 Defendant Soy purports to adopt this argument. He does not explain how it has any
application to him, because the uncontroverted evidence established that he fired the gun
at the time of the initial taking.


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stolen car unpursued from burglary, saw police vehicle four miles away and 12 minutes
later, which triggered reckless evasion of police ending in fatal crash; no place of
temporary safety reached after burglary] and People v. Johnson (1992) 5 Cal.App.4th
552, 557, 559-561 [objective standard; when robber still in flight, has not yet reached
place of temporary safety; even though the defendant subjectively felt safe after leaving
scene of robbery and after evading different police vehicles, was still in state of constant
flight 30 minutes later and more than 20 miles away when he caused fatal car accident]
with People v. Wilkins (2013) 56 Cal.4th 333, 347-348 [the defendant more than 60 miles
away on day after burglary when fatality occurred; no evidence of pursuit or fear of
pursuit, so the defendant entitled to instruction on temporary safety].) Lacking
substantial evidence to support it, defendant Drake as a result was not entitled to an
instruction on temporary safety in connection with the gun enhancement. (People
v. Bolden (2002) 29 Cal.4th 515, 558.)

                                        DISPOSITION

       The judgments in both appeals are affirmed. The trial court shall prepare a
corrected abstract of judgment for defendant Drake reflecting that the second assault
conviction was on count 6, not count 5, and forward a certified copy to the Department
of Corrections and Rehabilitation.


                                                        BUTZ                   , Acting P. J.

We concur:



             MAURO                   , J.



             MURRAY                  , J.

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