Filed 5/15/08
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
C047726
Plaintiff and Respondent,
(Super. Ct. Nos.
01F06412, 01F06501)
v.
SERGIO ZARAZUA et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Sacramento
County, David De Alba, J. Affirmed in part and reversed in
part.
Madeline McDowell, under appointment by the Court of
Appeal, for Defendant and Appellant Sergio Zarazua.
Richard A. Levy, under appointment by the Court of Appeal,
for Defendant and Appellant Carlos Zarazua.
Heather J. MacKay, under appointment by the Court of
Appeal, for Defendant and Appellant Jorge Ramirez.
Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General,
Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys
General, Michael P. Farrell, Senior Assistant Attorney General,
Stephen G. Herndon, Paul E. O’Connor, and Maureen A. Daly,
Deputy Attorneys General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rule 8.1110, this
opinion is certified for publication with the exception of parts
I-X and XII-XIII.
1
Three-year-old Rocky Douangmala was killed in a traffic
collision.
The car in which he was riding was hit by a car
carrying two members of the Norteños gang, who were fleeing
because of gunfire from another car carrying three members of
the Sureños gang.
Defendants Sergio Zarazua, Carlos Zarazua,
and Jorge Ramirez, the Sureños gang members, were convicted of
various counts associated with the gunfire and Rocky’s death.1
Carlos, who was tried by a separate jury, was convicted of
two counts of attempted murder and one count each of shooting at
an occupied vehicle and permitting discharge of a firearm from a
vehicle that he was driving.
The jury found true several
firearm and gang-related enhancement allegations.
Sentenced to
a state prison term of 15 years to life, Carlos appeals.
We
conclude his contentions are without merit except that one of
the enhancements found true by the jury with respect to
convictions for shooting at an occupied vehicle and permitting
discharge of a firearm from a vehicle that he was driving is not
applicable to convictions for those crimes.
We therefore order
them stricken and affirm the judgment as modified.
The striking
of the enhancements does not affect the sentence.
Sergio and Jorge were tried at the same time and in the
same courtroom as Carlos but by a different jury.
The jury
convicted them of one count each of second degree murder and
shooting at an occupied vehicle and two counts of attempted
1
Because two of them share a surname (they are brothers), we
refer to defendants by their first names, for clarity.
2
voluntary manslaughter, as well as firearm and gang-related
enhancements.
The court sentenced Sergio and Jorge to 22 years
8 months, plus 40 years to life in state prison.
We conclude
that the second degree murder and attempted voluntary
manslaughter convictions must be reversed and remanded for
retrial because of instructional error.
Otherwise, we affirm
the judgment, including the conviction for shooting at an
occupied vehicle.
In the published portion of this opinion, we consider an
issue raised by Sergio and Jorge.
They contend that the
evidence was insufficient to sustain the enhancement allegation
that their personal and intentional discharge of firearms
proximately caused Rocky’s death.
subd. (d).)
(See Pen. Code, § 12022.53,
We conclude that evidence was sufficient because
the collision that caused Rocky’s death was a foreseeable
consequence of their discharge of the firearms.
FACTS
Emilio Osorio and Julio Covington, cousins and members of
the Norteños gang, went to the AM/PM on the corner of Jessie
Avenue and Norwood Avenue in Sacramento in the red Pontiac
Firebird that Covington was driving.
Neither of them was armed.
Covington parked in front of the store and went into the store
while Osorio waited in the car.
Inside the store, Covington saw Sergio, whom he recognized
as a Sureño, based on his clothing.
the number 13 on it.
He was wearing a shirt with
Covington left the store and drove the
Pontiac over by the gasoline pumps.
3
Carlos was standing near
one of the pumps, next to a blue Toyota.
Covington yelled
“Norte” at Carlos, which, to a rival gang member, is a
challenge.
Covington also called Carlos a “scrapa,” a name a
Norteños gang member calls a Sureños gang member, intended as an
insult.
In response, Carlos yelled, “Fuck you.”
Angry,
Covington pulled out of the station and onto Jessie Avenue.
He
drove slowly through the neighborhood looking for someone he
knew.
Covington stopped at a stop sign on Naruth Way at the
intersection with Jessie Avenue, less than a half-mile from the
AM/PM and about a block from Rio Linda Boulevard.
The Toyota
from the AM/PM, with Carlos driving and Sergio and Jorge as
passengers, left the AM/PM and, traveling on Jessie Avenue,
approached the intersection of Naruth Way and Jessie Avenue just
after the Pontiac, traveling on Naruth Way, arrived at the same
intersection.
The Toyota skidded to a stop about 40 feet away
from the Pontiac.
Sergio and Jorge each leaned out of the
Toyota and fired handguns at the Pontiac.
Reacting to the gunshots, Covington told Osorio to get down
and first accidentally put the Pontiac in neutral but then into
drive.
He burned rubber, then drove away from the Toyota down
Jessie Avenue, gaining speed rapidly, and, despite a stop sign,
entered Rio Linda Boulevard going about 45 miles per hour.
At
the same time, a Honda Accord driven by Khamla Douangmala was
passing through the same intersection on Rio Linda Boulevard,
going about 35 miles per hour.
Douangmala’s uncle, Chan
Douangdara, was riding in the front passenger seat, and
4
Douangmala’s three-year-old son, Rocky, was riding in the
backseat on the passenger side.
The Pontiac hit the Honda, propelling it into some poles.
Douangmala and his uncle were both knocked unconscious but later
recovered.
Rocky, however, died as a result of the impact.
Lynn Reed had been waiting at the stop sign when the
Pontiac passed him and collided with the Honda.
Reed was
driving a sport utility vehicle and pulling a boat.
After the
collision, Covington and Osorio left the Pontiac and ran toward
Reed, who had pulled over onto Rio Linda Boulevard.
jumped into the boat.
Osorio
Covington attempted to force his way into
Reed’s vehicle through the driver’s door and clung to the
vehicle, expressing fear that someone was shooting at him.
After Reed drove slowly down Rio Linda Boulevard, about a block,
Covington and Osorio jumped off and fled the scene.
Sacramento Police Department investigators found a .25
caliber automatic shell casing at the corner of Jessie Avenue
and Naruth Way.
The red Pontiac had a bullet hole in the right
rear quarter panel and another through the rear tail lamp.
Other holes were either caused by bullets or by a dent puller,
used to repair dents in a car.
About one month after the incident, police searched a
residence occupied by Carlos and Sergio and their parents.
blue Toyota was parked in front of the residence.
The officers
found indicia of gang membership relating to both Carlos and
Sergio.
5
The
Each of the defendants was interviewed by police.2
Carlos, 19 years old at the time, recounted Covington’s
challenge to him at the AM/PM station and their pursuit of the
Pontiac.
Both Sergio and Jorge had handguns, Jorge’s a .25
millimeter, and fired at the Pontiac.
Jorge, 16 years old at the time, stated that, while he and
Sergio were in the AM/PM store, they realized that someone was
talking to Carlos, out by the gasoline pumps.
They hurried out
and joined Carlos in the Toyota to chase the Pontiac.
Jorge
claimed that the passenger in the Pontiac pointed a gun at them
and that Sergio was the only one who fired.
associating with Sureños gang members.
He admitted
Later, he admitted that
he fired one round at the Pontiac.
Sergio, 15 years old at the time, stated that he and Jorge
were Sureños gang members, but Carlos was not.
He claimed that
the occupants of the other car were shooting into the air, but
he later retracted that statement and claimed he said it because
Jorge had told him to.
Both Sergio and Jorge fired at the
Pontiac.
Other evidence will be recounted as it becomes relevant to
the issues discussed.
2
As discussed below, two juries tried the three defendants.
Only the jury considering Carlos’s guilt heard the recording of
Carlos’s interview. And only the jury considering the guilt of
Sergio and Jorge heard the recordings of their interviews.
6
PROCEDURE
The district attorney filed a “third amended consolidated
information” alleging counts of murder, attempted murder,
shooting at an occupied vehicle, and permitting another to
discharge a firearm from a vehicle, with associated special
circumstances and enhancements.
All three defendants pled not
guilty to all counts, and Carlos included a plea of not guilty
by reason of insanity.
The case was tried before two juries --
one for Sergio and Jorge (the “green” jury) and a separate jury
for Carlos (the “gold” jury, but also referred to in the record
as the “yellow” jury).
The green jury found Jorge and Sergio guilty of second
degree murder, attempted voluntary manslaughter (two counts),
and shooting at an occupied vehicle.
The gold jury found Carlos
guilty of attempted murder (two counts), shooting at an occupied
vehicle, and permitting discharge of a firearm from a vehicle
that he was driving.
The following outline details the jury’s verdicts and its
findings concerning the associated enhancement allegations:
1.
Jorge Ramirez
A.
The jury found Jorge guilty of second degree
murder of Rocky Douangmala as a lesser included offense of first
degree murder (Pen. Code, §§ 187, 189; count one),3 with the
following findings:
3
Hereafter, unspecified code citations are to the Penal
Code.
7
i.
Jorge was armed with a firearm (§ 12022,
ii.
Jorge used a firearm (§ 12022.5, subd. (a));
subd. (a)(1));
iii. Jorge personally used a firearm (§ 12022.53,
subds. (b) & (e)(1));
iv.
Jorge personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
v.
Jorge personally discharged a firearm
proximately causing great bodily injury and death to Rocky
Douangmala (§ 12022.53, subds. (d) & (e)(1)); and
vi.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
B.
The jury found Jorge guilty of attempted
voluntary manslaughter of Emilio Osorio as a lesser offense of
attempted murder (§§ 192, 664; count two), with the following
findings:
i.
Jorge was armed with a firearm (§ 12022,
ii.
Jorge used a firearm (§ 12022.5, subd. (a));
subd. (a)(1));
and
iii. the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
C.
The jury found Jorge guilty of attempted
voluntary manslaughter of Julio Covington as a lesser offense of
attempted murder (§§ 192, 664; count three), with the following
findings:
8
i.
Jorge was armed with a firearm (§ 12022,
ii.
Jorge used a firearm (§ 12022.5, subd. (a));
subd. (a)(1));
and
iii. the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
D.
The jury found Jorge guilty of shooting at an
occupied vehicle (§ 246; count four), with the following
findings:
i.
Jorge was armed with a firearm (§ 12022,
ii.
Jorge used a firearm (§ 12022.5, subd. (a));
subd. (a)(1));
iii. Jorge personally used a firearm (§ 12022.53,
subds. (b) & (e)(1));
iv.
Jorge personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
v.
Jorge personally discharged a firearm
proximately causing great bodily injury and death to Rocky
Douangmala (§ 12022.53, subds. (d) & (e)(1)); and
vi.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
2.
Sergio Zarazua
A.
The jury found Sergio guilty of second degree
murder of Rocky Douangmala as a lesser-included offense of first
degree murder (§§ 187, 189;
count one), with the following
findings:
9
i.
Sergio was armed with a firearm (§ 12022,
ii.
Sergio used a firearm (§ 12022.5, subd.
subd. (a)(1));
(a));
iii. Sergio personally used a firearm
(§ 12022.53, subds. (b) & (e)(1));
iv.
Sergio personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
v.
Sergio personally discharged a firearm
proximately causing great bodily injury and death to Rocky
Douangmala (§ 12022.53, subds. (d) & (e)(1)); and
vi.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
B.
The jury found Sergio guilty of attempted
voluntary manslaughter of Emilio Osorio as a lesser offense of
attempted murder (§§ 192, 664; count two), with the following
findings:
i.
Sergio was armed with a firearm (§ 12022,
ii.
Sergio used a firearm (§ 12022.5, subd.
subd. (a)(1));
(a)); and
iii. the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
C.
The jury found Sergio guilty of attempted
voluntary manslaughter of Julio Covington as a lesser offense of
attempted murder (§§ 192, 664; count three), with the following
findings:
10
i.
Sergio was armed with a firearm (§ 12022,
ii.
Sergio used a firearm (§ 12022.5, subd.
subd. (a)(1));
(a)); and
iii. the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
D.
The jury found Sergio guilty of shooting at an
occupied vehicle (§ 246; count four), with the following
findings:
i.
Sergio was armed with a firearm (§ 12022,
ii.
Sergio used a firearm (§ 12022.5, subd.
subd. (a)(1));
(a));
iii. Sergio personally used a firearm
(§ 12022.53, subds. (b) & (e)(1));
iv.
Sergio personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
v.
Sergio personally discharged a firearm
proximately causing great bodily injury and death to Rocky
Douangmala (§ 12022.53, subds. (d) & (e)(1)); and
vi.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
3.
Carlos Zarazua
A.
The jury found Carlos not guilty of first degree
murder and was unable to reach a verdict with respect to the
lesser include offense of second degree murder.
11
B.
The jury found Carlos guilty of attempted murder
of Emilio Osorio (§§ 187, subd. (a); 664; count two), with the
following findings:
i.
Carlos did not commit the attempted murder
willfully, deliberately, and with premeditation;
ii.
Carlos was not armed with a firearm;
iii. a principal personally used a firearm
(§ 12022.53, subds. (b) & (e)(1));
iv.
a principal personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
v.
the jury made no finding concerning whether
a principal discharged a firearm proximately causing great
bodily injury and death to Rocky Douangmala; and
vi.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
C.
The jury found Carlos guilty of attempted murder
of Julio Covington (§§ 187, subd. (a), 664; count three), with
the following findings:
i.
Carlos did not commit the attempted murder
willfully, deliberately, and with premeditation;
ii.
Carlos was not armed with a firearm;
iii. a principal personally used a firearm
(§ 12022.53, subds. (b) & (e)(1));
iv.
a principal personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
12
v.
the jury made no finding concerning whether
a principal discharged a firearm proximately causing great
bodily injury and death to Rocky Douangmala; and
vi.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
D.
The jury found Carlos guilty of shooting at an
occupied vehicle (§ 246; count four), with the following
findings:
i.
Carlos was not armed with a firearm;
ii.
a principal personally used a firearm
(§ 12022.53, subds. (b) & (e)(1));
iii. a principal personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
iv.
the jury made no finding concerning whether
a principal discharged a firearm proximately causing great
bodily injury and death to Rocky Douangmala; and
v.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
E.
The jury found Carlos guilty of permitting
discharge of a firearm from a vehicle that he was driving
(§ 12034, subd. (b); count five), with the following findings:
i.
Carlos was not armed with a firearm;
ii.
a principal personally used a firearm
(§ 12022.53, subds. (b) & (e)(1));
iii. a principal personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1));
13
iv.
the jury made no finding concerning whether
a principal discharged a firearm proximately causing great
bodily injury and death to Rocky Douangmala; and
v.
the offense was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)).
After a trial on Carlos’s sanity, the jury returned
verdicts finding he was sane when he committed the crimes.
Also
with respect to Carlos, the court declared a mistrial as to
second degree murder and the allegations that a principal
discharged a firearm proximately causing great bodily injury and
death to Rocky Douangmala.
Later, the court dismissed that
count and those allegations.
The trial court sentenced Jorge and Sergio, identically, to
a total determinate term of 22 years 8 months and a consecutive
indeterminate term of 40 years to life in state prison.
The
court sentenced Carlos to an indeterminate term of 15 years to
life in state prison.4
DISCUSSION
I
Impaired Physical Faculties
(Carlos Only)
Less than one year before the incident charged in this
case, Carlos received a brain injury when he was beaten by rival
gang members.
At trial, Carlos asked the court to instruct the
4
Because defendants do not raise issues concerning the
computation of their sentences, we need not recount the details.
14
jury, using CALJIC No. 3.37, to take into consideration Carlos’s
physical impairment when considering what a reasonable person
should know.
That instruction states:
“The amount of knowledge
a reasonable person with impaired physical faculties should
possess under particular circumstances is the knowledge which a
person of ordinary prudence with similarly impaired faculties
would have under the circumstances similar to those shown by the
evidence.”
(CALJIC No. 3.37.)
the instruction.
The trial court refused to give
On appeal, defendant asserts the refusal to
give the instruction was error.
As did the trial court, we
conclude the refusal to give CALJIC No. 3.37 was proper.
In October 2000, less than one year before the incident in
this case, Carlos was assaulted by several adult Norteños gang
members.
They hit him with a pipe, a bottle, and fists.
He was
hospitalized for nine days for treatment of his injuries,
including traumatic brain injury, a broken nose, swelling, and
abrasions.
After Carlos was released from the hospital, Sergio took
care of him and always accompanied him away from their
residence.
Carlos had memory problems and did not appear to
regain all of the cognitive ability that he had before the
attack.
An educational psychologist tested Carlos after his arrest
in this case and found him to be below 95 percent of the
population in intelligence.
He suffered from slow reactions and
difficulty in processing information, which would cause him to
rely on others to take the lead.
15
Carlos’s counsel argued that the injury to Carlos was a
physical injury resulting in physical, as well as mental,
impairment.
Therefore, contended counsel, the trial court was
required to give CALJIC No. 3.37.
The trial court responded:
“I have elected to, and did in fact instruct the jury as to
[CALJIC No.] 3.32 which informed the jury that they may consider
evidence of a mental defect or disorder at the time the crime
was charged, and I gave that reluctantly.
[¶]
. . .
[¶]
So
in light of the fact that I gave 3.32, I did not find it
necessary to give 3.37.”
Carlos’s appellate argument is more specific than was his
request in the trial court.
There, he simply asked for the
instruction because he had suffered a physical injury.
Here, he
cites People v. Mathews (1994) 25 Cal.App.4th 89.
In Mathews, police obtained a warrant to search the
defendant’s residence, which he shared with his son, a suspected
drug dealer.
impaired.
The defendant was elderly, blind, and hearing-
When the officers forced their way into the
residence, the defendant brandished a shotgun.
(People v.
Mathews, supra, 25 Cal.App.4th at pp. 93-94.)
Convicted of
exhibiting a firearm in the presence of a peace officer, the
defendant asserted, on appeal, that the trial court erred.
Because an element of the crime was that the defendant
“reasonably should know” that the victim was a peace officer,
argued the defendant, the trial court should have instructed the
jury that it should take into account the defendant’s physical
16
impairments (sight and hearing) when it determined whether the
defendant reasonably should have known the victim was a peace
officer.
The court agreed and reversed.
(Id. at pp. 99-101.)
The difference between Mathews and this case is obvious.
In Mathews, the defendant’s argument was that he did not have
the physical capacity to see or hear, which affected his ability
to know he was in the presence of a peace officer.
has no such sensory impairment.
Here, Carlos
There was no evidence that he
could not see or hear what was happening.
As Carlos concedes,
his asserted impairment was in processing information, not
gathering it.
The fact that his mental impairment, if there was
any, was caused by physical trauma does not change this
analysis.
Still, Carlos claims that, because the jury found he did
not shoot at the Pontiac, he was therefore convicted on an
aiding and abetting theory and that theory required the jury to
consider his physical impairment.
The law does not support
Carlos’s argument.
Under the aiding and abetting theory, he could be found
guilty of any crime committed by a principal which is a natural
and probable consequence of any other crime which the defendant
aided and abetted.
(See CALJIC No. 3.02.)
As the trial court
instructed the jury, “[i]n determining whether a consequence is
‘natural and probable,’ [the jury] must apply an objective test,
based not on what the defendant actually intended, but on what a
person of reasonable and ordinary prudence would have expected
likely to occur.
The issue is to be decided in light of all of
17
the circumstances surrounding the incident.
A ‘natural’
consequence is one which is within the normal range of outcomes
that may be reasonably expected to occur if nothing unusual has
intervened.
‘Probable’ means likely to happen.”
(CALJIC No.
3.02.)
Carlos argues:
“CALJIC No. 3.32, as modified and read to
the jury [concerning mental impairment], focuses on whether
[Carlos] actually (subjectively) formed the intent to commit or
aid and abet in the charged crimes.
[Record citations.]
On its
face, it makes no reference to the objectively reasonable-person
standard or to guilt under the doctrine of natural and probable
consequence.
CALJIC No. 3.37 [concerning impairment of physical
faculties] would have told the jury to consider whether, given
the fact that Carlos subjectively committed or aided and abetted
a lesser or different crime . . . , a reasonable person with
Carlos’s limitations would have found that the greater crime
(attempted murder or shooting at an occupied vehicle) was a
natural and probable consequence of that lesser crime.”
(Italics in original.)
The problem with this argument is that it is not supported
by the law concerning natural and probable consequences.
Carlos
offers no authority, and we know of none, requiring the jury to
take into account a brain injury, as a physical impairment, in
determining whether the crimes committed by a principal were the
natural and probable consequences of crimes which Carlos aided
and abetted.
As noted above, the test is objective, not
subjective, and asks whether “a reasonable person in the
18
defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the
act aided and abetted by the defendant.”
(People v. Nguyen
(1993) 21 Cal.App.4th 518, 531.)
Accordingly, Carlos fails to establish that the trial court
erred by not instructing the jury, using CALJIC No. 3.37, to
take into consideration Carlos’s physical impairment when
considering what a reasonable person should know.
II
Modification of CALJIC No. 3.37
(Carlos Only)
Again focusing on the instruction that Carlos could be
found guilty as an aider and abettor to any crime that was the
natural and probable consequence of any act he aided and
abetted, Carlos asserts the trial court committed error by not
modifying CALJIC No. 3.37 sua sponte.
He contends the trial
court had a duty to instruct the jury that it should take into
consideration Carlos’s asserted mental impairment in determining
what a person of reasonable and ordinary prudence would have
expected likely to occur.
We disagree.5
5
The Attorney General contends defendants forfeited this and
other claims of instructional error because they did not object
to the instruction in the trial court. “Normally, a defendant
forfeits the right to appeal alleged errors ‘“by failing to make
an appropriate objection in the trial court; however, an
appellate court may review any instruction given even though no
objection was made in the lower court if the substantial rights
of the defendant are affected. [Citation.] The cases equate
‘substantial rights’ with reversible error, i.e., did the error
19
As we noted above, the test for whether a crime was a
natural and probable consequence of an act a defendant aided and
abetted is objective.
at p. 531.)
(People v. Nguyen, supra, 21 Cal.App.4th
Carlos’s mental condition is simply irrelevant, and
the claim that CALJIC No. 3.37 can be extended to mental
impairments is similarly unavailing.
Accordingly, Carlos’s asserted mental impairment was
irrelevant to the question of whether any of the charged or
lesser included crimes were the natural and probable consequence
of acts which Carlos aided and abetted.
The trial court did not
err.
III
Imperfect Defense of Others
(Carlos Only)
Carlos contends that the trial court erred by not giving an
instruction to the jury, sua sponte, concerning imperfect
defense of others.
The contention is without merit because the
evidence was insufficient to support an instruction and, even
assuming the evidence was sufficient, it is not reasonably
probable that Carlos would have obtained a better result had the
jury been instructed on imperfect defense of others.
result in a miscarriage of justice? [Citations.]” [Citation.]’
[Citation.]” (People v. Christopher (2006) 137 Cal.App.4th 418,
426-427, italics omitted.) To determine whether a particular
instruction, lack of instruction, or misinstruction affected
defendants’ substantial rights, we must consider the merits of
the claim. Accordingly, we need not consider separately whether
the claim was forfeited by failure to object.
20
A.
Law of Imperfect Defense of Others
“[O]ne who kills in imperfect defense of others -- in the
actual but unreasonable belief he must defend another from
imminent danger of death or great bodily injury -- is guilty
only of manslaughter.”
997.)
(People v. Randle (2005) 35 Cal.4th 987,
The threat to which the defendant responds must be
imminent, creating danger of harm at that very instant.
(See In
re Christian S. (1994) 7 Cal.4th 768, 783 [concerning imperfect
self-defense].)
A trial court has a duty to instruct the jury,
sua sponte, on imperfect defense of others, if warranted.
(People v. Randle, supra, at p. 996.)
An instruction on a
lesser included offense is required only if there is substantial
evidence showing that the defendant is only guilty of the lesser
offense.
B.
(People v. Breverman (1998) 19 Cal.4th 142, 162.)
Aider and Abettor Liability
Before we discuss the sufficiency of the evidence to
support an instruction on imperfect defense of others, we must
consider an argument made by the Attorney General.
He asserts
that the trial court’s failure to instruct concerning imperfect
defense of others was not error because only Carlos’s mental
state was relevant to whether he aided and abetted the attempted
murders of Osorio and Covington.
This assertion is incorrect on
the facts of this case and the manner in which the jury was
instructed.
Aider and abettor liability is of two kinds.
“First, an
aider and abettor with the necessary mental state is guilty of
the intended crime.
Second, under the natural and probable
21
consequences doctrine, an aider and abettor is guilty not only
of the intended crime, but also ‘for any other offense that was
a “natural and probable consequence” of the crime aided and
abetted.’
[Citation.]
Thus, for example, if a person aids and
abets only an intended assault, but a murder results, that
person may be guilty of that murder, even if unintended, if it
is a natural and probable consequence of the intended assault.
[Citation.]”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
The mental state requirements differ for the two kinds of
aider and abettor liability.
As to the intended crime, the
relevant mental state is that of the aider and abettor.
(People
v. McCoy, supra, 25 Cal.4th at p. 1117 [criminal liability
“based on a combination of the direct perpetrator’s acts and the
aider and abettor’s own acts and own mental state” (italics in
original)].)
Under the natural and probable consequences
theory, however, aider and abettor liability is based on whether
the defendant aided and abetted the actual crime, including
mental state, committed by the accomplice.
(People v. Nguyen,
supra, 21 Cal.App.4th at p. 531.)
Here, the jury was instructed on both kinds of aider and
abettor liability.
Therefore, Carlos’s jury may have found
Carlos, who did not shoot at the Pontiac, guilty of the
attempted murders of Osorio and Covington based on the natural
and probable consequences theory.
As a result, the mental state
of Sergio and Jorge when they shot at the Pontiac was relevant
to whether Carlos committed the crime of attempted murder.
22
C.
Sufficiency of Evidence to Support Instruction
Although the mental state of Sergio and Jorge was relevant
to whether Carlos committed attempted murder under the natural
and probable consequences theory, the evidence was insufficient
to justify a jury instruction concerning imperfect defense of
others, which negates malice.
Sergio testified that Carlos was
beaten nine months before this incident.6
As a result, Carlos
received brain damage, and Sergio felt responsible for him.
Sergio carried a gun in order to be able to protect Carlos.
Sergio stated that, when the Toyota which Carlos was driving and
in which Sergio was riding approached the Pontiac, the Pontiac
blocked the intersection and Osorio exhibited gang signs and
shouted at them.
Sergio thought the occupants of the Pontiac
were going to get out of the car, so Sergio tried to scare them
away with his gun.
He was afraid that Carlos would get hurt
again.
This evidence is insufficient to establish that Sergio
believed harm to Carlos was imminent.
He did not say that
Covington or Osorio was aiming or threatening to aim a gun.
They were not getting out of the car to attack Carlos, even if
Sergio was afraid they might.
“Fear of future harm -- no matter how great the fear and no
matter how great the likelihood of the harm -- will not suffice.
6
Carlos focuses on Sergio’s in-court testimony, which is
appropriate because the statements that Sergio and Jorge gave to
police were not introduced into evidence for consideration by
Carlos’s jury.
23
The defendant’s fear must be of imminent danger to life or great
bodily injury.
‘“[T]he peril must appear to the defendant as
immediate and present and not prospective or even in the near
future.
An imminent peril is one that, from appearances, must
be instantly dealt with.”
. . .
[¶]
This definition of
imminence reflects the great value our society places on human
life.’
[Citation.]
Put simply, the trier of fact must find an
actual fear of an imminent harm.
Without this finding,
imperfect self-defense is no defense.”
(In re Christian S.,
supra, 7 Cal.4th at p. 783, italics in original.)
Even though
this quote comes from a case involving imperfect self-defense,
there is no reason to differentiate between imperfect selfdefense and imperfect defense of others with respect to the
reality of the actor’s belief and the imminence of the danger.
Accordingly, the evidence was insufficient to support an
instruction concerning imperfect defense of others, and the
trial court did not err by not giving such an instruction.
D.
Lack of Prejudice
Even if there was substantial evidence that Carlos aided
and abetted Sergio or Jorge, who had an unreasonable belief in
the necessity of defending Carlos, any error in failing to give
the instruction was harmless.
“Any error in failing to instruct
on imperfect defense of others is state law error alone, and
thus subject, under article VI, section 13 of the California
Constitution, to the harmless error test articulated in People
v. Watson (1956) 46 Cal.2d 818, 836.”
35 Cal.4th at p. 1003.)
24
(People v. Randle, supra,
Here, the trial court instructed the jury concerning
imperfect self-defense, using general language referring to the
“necessity to defend against imminent peril to life or great
bodily injury . . . .”
(CALJIC No. 5.17.)
Under the facts of
this case, there is no real difference between imperfect selfdefense and imperfect defense of others because Carlos, Sergio,
and Jorge were all in the same position -- that is, in a car in
proximity to another car occupied by members of an opposing
gang.
Carlos argues that there is a difference between selfdefense and defense of others because Sergio and Jorge were
armed, while Carlos was not.
Because of this fact, “Sergio and
[Jorge] did not necessarily fear death and great bodily
injury . . . .”
This argument seems to suggest that, because
they were armed, Sergio and Jorge were impervious to the type of
attack they may have feared would come from Covington and
Osorio.
The argument makes no sense on the facts of this case.
Covington and Osorio never got out of the car, at least not
until after the crash.
Therefore, the only possible threat
would have been if Covington and Osorio were to shoot at Carlos,
Sergio, and Jorge.
Thus, the three were equally vulnerable.
Therefore, given the fact that Carlos’s jury did not find
imperfect self-defense, it is unreasonable to conclude that the
jury would have found imperfect defense of others had an
instruction on that theory been given.
25
IV
CALJIC No. 8.41
(Carlos Only)
Carlos contends that the trial court erred by failing to
instruct the jury, sua sponte, concerning what circumstances
negate malice and turn an attempted murder into an attempted
voluntary manslaughter.
He claims the trial court should have
instructed using CALJIC No. 8.41, which states:
“There is no
malice aforethought if the killing or attempted killing occurred
upon a sudden quarrel or heat of passion or in the actual but
unreasonable belief in the necessity to defend oneself or
another person against imminent peril to life or great bodily
injury.”
We conclude the trial court did not err by failing to
instruct using CALJIC No. 8.41 because the evidence was
insufficient to support the instruction.
In any event, we
conclude error, if any, in not giving the instruction was
harmless.7
A.
Legal Background
“The trial court is obligated to instruct the jury on all
general principles of law relevant to the issues raised by the
evidence, whether or not the defendant makes a formal request.
7
The Attorney General expresses doubt concerning whether
CALJIC No. 8.41, which was added to CALJIC in 2004, was even
available for use in this 2004 trial. We need not resolve the
doubt because we conclude it was unnecessary to give the
instruction.
26
[Citations.]
That obligation encompasses instructions on lesser
included offenses if there is evidence that, if accepted by the
trier of fact, would absolve the defendant of guilt of the
greater offense but not of the lesser.
[Citations.]
To justify
a lesser included offense instruction, the evidence supporting
the instruction must be substantial -- that is, it must be
evidence from which a jury composed of reasonable persons could
conclude that the facts underlying the particular instruction
exist.
[Citations.]”
(People v. Blair (2005) 36 Cal.4th 686,
744-745.)
Attempted voluntary manslaughter is a lesser included
offense of attempted murder.
Cal.App.4th 1543, 1545.)
(See People v. Montes (2003) 112
“Statutory” attempted voluntary
manslaughter arises “upon a sudden quarrel or heat of passion.”
(§ 192, subd. (a).)
“Nonstatutory” attempted voluntary
manslaughter arises where there is a genuine but unreasonable
belief in the need to defend against imminent peril to life or
great bodily injury.
1103, 1107, fn. 1.)
(See People v. Saille (1991) 54 Cal.3d
In either case, the circumstances negate
malice, even if the defendant intended to kill.
(See People v.
Blakeley (2000) 23 Cal.4th 82, 87-88.)
B.
Sufficiency of Evidence
1.
Sudden Quarrel or Heat of Passion
“The heat of passion requirement for manslaughter has both
an objective and a subjective component.
[Citation.]
The
defendant must actually, subjectively, kill under the heat of
passion.
[Citation.]
But the circumstances giving rise to the
27
heat of passion are also viewed objectively.
As [the Supreme
Court] explained long ago in interpreting the same language of
section 192, ‘this heat of passion must be such a passion as
would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’
because ‘no defendant may set up his own standard of conduct and
justify or excuse himself because in fact his passions were
aroused, unless further the jury believe that the facts and
circumstances were sufficient to arouse the passions of the
ordinarily reasonable man.’
[Citation.]”
(People v. Steele
(2002) 27 Cal.4th 1230, 1252-1253.)
As the trial court instructed the jury, “[a] defendant is
not permitted to set up his own standard of conduct and to
justify or excuse himself because his passions were aroused
unless the circumstances in which the defendant was placed and
the facts that confronted him were such as also would have
aroused the passion of the ordinarily reasonable person faced
with the same situation.”
(See CALJIC No. 8.42.)
Here, the evidence was insufficient, as a matter of law, to
support an instruction concerning whether malice was negated by
a sudden quarrel or heat of passion.
Carlos and his accomplices
may have actually been insulted by Osorio’s shouting of his own
gang affiliation, but only the hypersensitivity to such matters
engendered in gang culture would cause a heat of passion
sufficient to kill or attempt to kill.
In other words, such
passion would not have been aroused in the mind of an ordinarily
reasonable person.
Such hypersensitivity is neither common to
28
the reasonable person nor defensible as a public policy matter.8
(See People v. Steele, supra, 27 Cal.4th at pp. 1252-1253.)
2.
Unreasonable Belief in Need to Defend
The evidence was also insufficient to support an
instruction concerning whether malice was negated because Carlos
and his accomplices had an actual but unreasonable belief in the
necessity of defending.
As noted above, they were not in
imminent peril.
C.
Lack of Prejudice
In any event, even if the trial court erred by not giving
CALJIC No. 8.41 to the jury, the error was harmless because
(1) another instruction apprised the jury that heat of passion
or imperfect self-defense negates malice and (2) the evidence
potentially negating malice was insubstantial.
Any error in instructing concerning what circumstances
negate malice as to an attempted murder is state law error only.
Therefore, the state law standard of prejudice applies -- that
is, we ask whether it is reasonably probable that Carlos would
have obtained a more favorable result had the instruction been
given.
(People v. Randle, supra, 35 Cal.4th at p. 1003.)
The trial court instructed the jury, using CALJIC No. 8.40,
that heat of passion or unreasonable self-defense and defense of
8
Carlos argues that the fact that he was beaten by Norteños
gang members nine months earlier is relevant to whether he acted
in the heat of passion. There is here, however, no evidence
that Covington or Osorio participated in that beating or that
Carlos believed they were involved.
29
others negates malice with respect to a killing, even though the
instruction was not given as to an attempted killing.9
Having
been instructed, therefore, that heat of passion or unreasonable
self-defense and defense of others negates malice, it is
unlikely that the jury would have found that Carlos acted with
malice in the attempted killing of Covington and Osorio even if
the jury found that Carlos acted in the heat of passion or in
imperfect self-defense.10
As noted above, the evidence that Carlos acted, or aided
and abetted another in acting, in imperfect defense of others
was insubstantial.
The evidence that imperfect self-defense
negated malice was also weak.
Carlos and his accomplices were
not in a position of imminent peril.
Likewise, the evidence
that supported a finding of heat of passion, with its objective
element, was not strong.
It is unlikely that the jury would
9
As given, CALJIC No. 8.40 concerning negation of malice as
to a killing states, in pertinent part: “There is no malice
aforethought if the killing occurred upon a sudden quarrel or
heat of passion or in the actual but unreasonable belief in the
necessity to defend oneself against imminent peril to life or
great bodily injury.”
10
Carlos notes that the green jury (trying Sergio and Jorge)
asked the court whether CALJIC No. 8.40 also applied to
attempted killing. The gold jury (trying Carlos), however, did
not ask and, therefore, was left to wonder, according to Carlos.
As we see it, the fact that the green jury correctly surmised
that CALJIC No. 8.40 could be applied to an attempted killing
further establishes that there was no prejudice in not giving
CALJIC No. 8.41.
30
have found that a reasonable person would have been sufficiently
inflamed by the situation to attempt to kill.
V
Gang Enhancement Instruction
(All Defendants)
All three defendants contend that the jury instruction on
the criminal street gang enhancement was improper because it did
not conform with the statutory definition of the “primary
activities” of a criminal street gang.
We conclude that, even
though the instruction was flawed, any error was harmless.
A.
Primary Activities
The juries found defendants committed the crimes for the
benefit of a criminal street gang, which resulted in sentence
enhancements.
(§ 186.22, subd. (b).)
“To trigger the gang
statute’s sentence-enhancement provision (§ 186.22, subd. (b)),
the trier of fact must find that one of the alleged criminal
street gang’s primary activities is the commission of one or
more of certain crimes listed in the gang statute.”
(People v.
Sengpadychith (2001) 26 Cal.4th 316, 322.)
B.
Wording of the Instruction
The trial court’s instruction with respect to the
definition of a criminal street gang and the primary activities
requirement stated:
“‘Criminal street’ gang means any ongoing
organization, association, or group of three or more persons,
whether formal or informal, (1) having as one of its primary
activities the commission of one or more of the following
31
criminal acts, murders, attempted murders, shootings and
assaults, (2) having a common name or common identifying sign
or symbol and (3) whose members individually or collectively
engage in or have engaged in a pattern of criminal gang
activity. . . .”
Of the four enumerated activities (murders, attempted
murders, shootings, and assaults) in the jury instruction, only
two are among the 25 enumerated crimes in the gang enhancement
statute -- murders and attempted murders.11
(e)(3).)
(§ 186.22, subd.
Assault with a deadly weapon is an enumerated offense
(§ 186.22, subd. (e)(1)), but simple assault is not.
Likewise,
shooting at an inhabited dwelling or occupied vehicle and
shooting from a vehicle are enumerated offenses (§ 186.22, subd.
(e)(5) & (6)), but simple shooting is not.
Therefore, the instruction concerning what primary
activities support a criminal gang enhancement was
insufficiently precise.
C.
Lack of Prejudice
Defendants and the Attorney General disagree concerning
what standard applies to determining whether the flawed
11
Although attempted murders are not themselves listed in
section 186.22, subdivision (e), an attempt to commit any of the
listed crimes is sufficient to establish the primary activities
requirement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1227.)
Defendants assert that People v. Vy was wrongly decided. We
decline the invitation to reassess this precedent because, as
discussed below, any error in the wording of the jury
instruction was harmless beyond a reasonable doubt.
32
instruction was prejudicial.
The defendants assert that the
federal Chapman12 standard applies, requiring the court to
determine whether the error was harmless beyond a reasonable
doubt, while the Attorney General claims that the state Watson
standard applies, which asks whether it is reasonably probable
that the defendant would have obtained a more favorable result
in the absence of error.
We need not resolve the dispute
because the error was harmless under either standard.
The prosecution provided expert testimony concerning the
activities of the Sureños criminal street gang.
Detective
Ronald Aurich testified that the Sureños gangs’ “primary
activities are assaults.
That could be with weapons versus
bats, beer bottles, knives, guns, drive-by shootings, murder.”
The parties stipulated that three Sureños members were convicted
of murder and attempted murder.
Detective Aurich testified that
they killed a Norteños gang member.
Considering this uncontradicted expert evidence and
stipulation, it is unreasonable to conclude that the jury would
not have found the requisite primary activities in determining
the truth of the gang enhancement if the instruction had been
more precise.
There is nothing in the record to rebut the
evidence that the primary activities of the Sureños included
murder, attempted murder, and assault with a deadly weapon.
(See § 186.22, subd. (e)(1) & (3).)
12
Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
33
Defendants assert, however, that, because there was
evidence of other Sureños activities not listed as primary
activities in the gang enhancement statute, the jury may have
found true the gang enhancement based on those unlisted
activities.
For example, Carlos argues:
“The jury had ample
reason to conclude that assaults with the fist were primary
activities of the Sureños.”
Even if assaults with the fists
were primary activities of the Sureños, however, the evidence is
inescapable that murder, attempted murder, and assault with a
deadly weapon were also primary activities.
Accordingly, the
error in listing the primary activities in the jury instruction
was harmless under either standard.
VI
Penal Code Section 12022.53
(Carlos Only)
As to each offense of which Carlos was convicted, the jury
found that a principal personally used a firearm and personally
discharged a firearm pursuant to section 12022.53, subdivisions
(b), (c), & (e)(1).13
Carlos contends that these firearm
13
Section 12022.53, subdivision (b) states, in pertinent
part: “[A]ny person who, in the commission of a felony
specified in subdivision (a), personally uses a firearm, shall
be punished by an additional and consecutive term of
imprisonment in the state prison for 10 years.”
Subdivision (c) states, in pertinent part: “[A]ny person
who, in the commission of a felony specified in subdivision (a),
personally and intentionally discharges a firearm, shall be
punished by an additional and consecutive term of imprisonment
in the state prison for 20 years.”
34
findings should be stricken as to shooting at an occupied
vehicle (count four) and permitting a passenger to shoot from a
vehicle (count five) because section 12022.53 does not apply to
those crimes.
We agree.
Although the findings must be stricken as to those two
counts, it has no effect on the sentence.14
The term for the
section 12022.53 enhancement was stayed as to those counts.
Subdivision (a) of section 12022.53 provides a list of
crimes to which the firearm enhancements of that section apply.
It states:
“This section applies to the following
felonies . . . .”
Although the list includes attempted murder
(§ 12022.53, subd. (a)(1) & (18)), it does not include shooting
at an occupied vehicle (count four) or permitting a passenger to
shoot from a vehicle (count five).
Therefore, it was improper
to have the jury make findings concerning whether the facts
supported true findings of section 12022.53 enhancements as to
counts four and five.
The Attorney General agrees that subdivisions (b) and (c)
of section 12022.53 are inapplicable to counts four and five
Subdivision (e)(1) states: “The enhancements provided in
this section shall apply to any person who is a principal in the
commission of an offense if both of the following are pled and
proved: [¶] (A) The person violated subdivision (b) of Section
186.22. [¶] (B) Any principal in the offense committed any act
specified in subdivision (b), (c), or (d).”
14
The abstract of judgment did not reflect the section
12022.53 enhancement for counts four and five. Therefore, it is
unnecessary to order an amendment to the abstract.
35
because the crimes charged in those counts are not listed in
subdivision (a).
However, he argues that subdivision (e)(1) has
a broader application and applies to counts four and five.
We
disagree because the statute is explicit concerning the crimes
to which it applies.
While subdivisions (b) and (c) of section 12022.53 provide
enhancements when a perpetrator personally uses or discharges a
firearm, subdivision (e)(1) extends the scope of those
enhancements to principals who did not personally use or
discharge a firearm if two conditions are met:
(1) “The person
violated subdivision (b) of Section 186.22 [the criminal street
gang statute].”
And (2) “Any principal in the offense committed
any act specified in subdivision (b), (c), or (d).”
Therefore,
even though Carlos did not personally use or discharge a firearm
in committing the attempted murders, the Attorney General argues
that the enhancements found in subdivisions (b) and (c) apply to
Carlos because (1) he violated the criminal street gang statute
and (2) Sergio and Jorge personally used and discharged
firearms.
The Attorney General’s argument for applying subdivision
(e)(1) of section 12022.53 to Carlos with respect to counts four
and five is based on the introductory wording of subdivision
(e)(1), which states:
“The enhancements provided in this
section shall apply to any person who is a principal in the
commission of an offense . . . .”
Apparently, the Attorney
General believes that subdivision (e)(1) applies to the
commission of any offense, regardless of whether the offense is
36
one of the felonies listed in subdivision (a).
This
interpretation of the statute, however, would contradict
subdivision (a), which specifically lists the felonies to which
the section applies.
Accordingly, the Attorney General’s
argument is without merit because it would render the statute
internally inconsistent.
(People v. Trevino (2001) 26 Cal.4th
237, 245-246 [we must give effect to words used by
Legislature].)
VII
Second Degree Felony Murder Instruction
(Sergio and Jorge)
Sergio and Jorge contend that their convictions for second
degree murder must be reversed because the jury instructions
erroneously allowed the jury to convict them of second degree
felony murder in a provocative act case.
We conclude the trial
court erred by instructing the jury concerning second degree
felony murder under the circumstances of this case because the
direct cause of Rocky’s death was the act of Covington, not one
of the defendants here.
A.
Law Concerning Provocative Act Causation and Felony
Murder
The trial court properly instructed the jury that “[a]
homicide committed during the commission of a crime by a person
who is not a perpetrator of that crime, in response to an
intentional provocative act by a perpetrator of the crime other
than the deceased, is considered in law to be an unlawful
killing by the surviving perpetrators of the crime.”
37
(See
CALJIC No. 8.12.)
The court further instructed the jury
concerning the definition of “intentional provocative act” and
how the intentional provocative act doctrine related to implied
malice second degree murder.
The courts have “applied principles of implied malice
murder to situations in which criminal defendants neither
kill nor intend to kill, but cause a third party to kill in
response to their life-threatening provocative acts.
The
provocative act murder doctrine was originally conceived as a
form of implied malice murder, derived as an offshoot of the
felony-murder rule.”
(People v. Cervantes (2001) 26 Cal.4th
860, 867.)
However, although the provocative act murder doctrine is an
offshoot of the felony-murder rule, the felony-murder rule,
itself, applies only when the killing is committed by the
defendant or an accomplice, not by the third person responding
to the provocative act.
777 (Washington).)
(People v. Washington (1965) 62 Cal.2d
In Washington, the Supreme Court stated that
“for a defendant to be guilty of murder under the felony-murder
rule the act of killing must be committed by the defendant or by
his accomplice acting in furtherance of their common design.
[Citations.]”
(Id. at p. 783, italics added.)
Thus, the
felony-murder rule does not apply if the person is killed by the
defendant’s victim, not by the defendant.
Washington involved application of the felony-murder rule
when a robber provokes the victim who kills the robber’s
accomplice.
The court stated:
“When a killing is not committed
38
by a robber or by his accomplice but by his victim, malice
aforethought is not attributable to the robber, for the killing
is not committed by him in the perpetration or attempt to
perpetrate robbery.
It is not enough that the killing was a
risk reasonably to be foreseen and that the robbery might
therefore be regarded as a proximate cause of the killing. . . .
[¶]
The purpose of the felony-murder rule is to deter felons
from killing negligently or accidentally by holding them
strictly responsible for killings they commit.
[Citations.]
This purpose is not served by punishing them for killings
committed by their victims.”
B.
(62 Cal.2d at p. 781.)
Felony Murder Instruction
The trial court instructed the jury concerning the felonymurder rule, apprising the jury that the defendants are guilty
of murder if someone died during the commission of shooting at
an occupied vehicle.
Under the facts of this case, that
instruction was improper under Washington.
It had the effect of
allowing the jury to find defendants guilty of second degree
murder based solely on its conclusion that Rocky died during
defendants’ commission of shooting at an occupied vehicle.
The felony-murder rule instruction given by the court
provided:
“The unlawful killing of a human being, whether
intentional, unintentional, or accidental, which occurs during
the commission or attempted commission of as the direct causal
result of the crime of willfully, unlawfully and maliciously
discharging a firearm at an occupied vehicle is murder of the
39
second-degree when the perpetrator had the specific intent to
commit that crime.”
(See CALJIC No. 8.32.)
Thus, even though Rocky died as a result of a provocative
act, the instructions allowed the jury to find defendants guilty
of second degree murder under the felony-murder theory if it
merely concluded that defendants committed the crime of shooting
at an occupied vehicle and Rocky died.
Even though the jury
found defendants guilty of attempted voluntary manslaughter and
not attempted murder with respect to Covington and Osorio, it
nonetheless found defendants guilty of second degree murder with
respect to Rocky’s death.
C.
Prejudice
Error in instructing on the elements of the crime is
reviewed under the federal harmless error test.
“The federal
Constitution’s Fifth Amendment right to due process and Sixth
Amendment right to jury trial, made applicable to the states
through the Fourteenth Amendment, require the prosecution to
prove to a jury beyond a reasonable doubt every element of a
crime.
[Citation.]
Thus, a trial court’s failure to instruct
on an element of a crime is federal constitutional error
[citation] that requires reversal of the conviction unless it
can be shown ‘beyond a reasonable doubt’ that the error did not
contribute to the jury's verdict (Chapman v. California, supra,
386 U.S. at p. 24; People v. Flood (1998) 18 Cal.4th 470, 492504; see Neder v. United States (1999) 527 U.S. 1, 8-15 [144
L.Ed.2d 35]).”
(People v. Sengpadychith, supra, 26 Cal.4th at
pp. 324-325, italics omitted.)
40
The Attorney General contends that the trial court’s
instruction on second degree felony murder was not prejudicial
because the jury necessarily found defendants (1) acted with
malice and (2) caused Rocky’s death.
unconvincing.
The argument is
Although it appears the jury concluded that
Rocky’s death was a result of defendants’ acts, the record does
not reflect that the jury necessarily found malice with respect
to the second degree murder charge.
1.
Malice
The Attorney General asserts that a conviction based on the
second degree felony-murder rule constitutes a finding of malice
because the felony-murder rule “acts as a substitute for implied
malice and eliminates the need for the prosecution to establish
the mental component required for the offense of murder.
[Citations.]”
It is true that, in instances where the felony-
murder rule is applicable, proof of the intent to commit the
underlying felony negates the need to prove malice.
“[T]he
issue of malice is therefore ‘wholly immaterial for the purpose
of the proponent’s case’ when the charge is felony murder.”
(People v. Dillon (1983) 34 Cal.3d 441, 475.)
But this does not
overcome the problem that the Supreme Court has held that the
felony-murder rule cannot be applied in provocative act
situations, such as in this case.
(Washington, supra, 62 Cal.2d
777.)
2.
Evidence of Second Degree Murder
The Attorney General also contends “there is a firm basis
in the record for concluding the second-degree murder verdict
41
was based on a valid ground.”
While we agree that there was
sufficient evidence to convict defendants of the second degree
murder of Rocky based on an implied malice provocative act
theory, the instructions allowed the jury to avoid finding
malice by using the felony-murder rule.
The jury’s verdicts finding defendants guilty of attempted
voluntary manslaughter instead of attempted murder further
debunk the Attorney General’s assertion that any instructional
error was harmless.
The attempted manslaughter verdicts reflect
that the jury, for some reason, did not find malice in the
attempts against Covington and Osorio, as far as Sergio and
Jorge are concerned.
Although it is possible that the jury
nonetheless found malice with respect to Rocky’s killing, which
would seem inconsistent but would not be a basis for reversal if
the jury had been instructed properly (People v. Avila (2006) 38
Cal.4th 491, 600), it is also possible that the jury did not
find malice in Rocky’s killing.
That conclusion is simply
unavoidable and prevents a finding that the instructional error
was harmless beyond a reasonable doubt.
D.
Remand
We have concluded, therefore, that the conviction of Sergio
and Jorge for second degree murder (count one) must be reversed.
Defendants argue, further, that we cannot remand for retrial on
that count because there was insufficient evidence to sustain a
second degree murder conviction using the felony-murder rule.
(See Burks v. United States (1978) 437 U.S. 1, 18 [57 L.Ed.2d 1,
14] [no remand for retrial if no valid legal theory left on
42
evidence].)
Here, however, the provocative act implied malice
theory was supported by substantial evidence and can be tried on
remand.
E.
Other Issues
Defendants assert that the instructions allowing the jury
to convict them based on the felony-murder rule violated their
federal due process rights because they had a state-created
liberty interest in not being convicted of felony murder in a
provocative act case.
We need not consider this contention
because, as noted, the murder count must be reversed based on
instructional error.
VIII
Other Challenges to Second Degree Murder Convictions
(Sergio and Jorge)
Defendants raise five additional issues concerning their
second degree murder convictions.
First, they assert that the
second degree felony-murder rule, a judicially-created rule,
unlike the statutory first degree felony-murder rule, is
unconstitutional.
Second, they cannot be convicted of second
degree felony murder because the crime of shooting at an
occupied vehicle was an assaultive crime that merged with the
homicide.
Third, the trial court erred by not instructing the
jury, sua sponte, on transferred self-defense.
Fourth, the
trial court’s modification of CALJIC No. 8.32 improperly omitted
from the jury’s consideration the element of causation with
respect to the murder count.
And fifth, expanding the second
degree felony-murder rule to include provocative act killings by
43
a third person deprives defendants of due process of law because
it is an unexpected and indefensible expansion of criminal
liability.
Because we conclude the second degree murder
conviction must be reversed, we need not consider these five
additional issues.
IX
Instructions Concerning Attempted Manslaughter
(Sergio and Jorge)
Sergio and Jorge contend that their convictions for
attempted voluntary manslaughter of Covington and Osorio must be
reversed because the trial court’s instructions on that crime
misled the jury into believing a person could commit attempted
voluntary manslaughter without an intent to kill.
The Attorney
General concedes the instructions were erroneous but maintains
that (1) any error was harmless and (2) defendants cannot
complain of the error because it inured to their benefit.
We
conclude that the attempted voluntary manslaughter convictions
must be reversed.
A.
Instructional Error
The problem in defining attempted voluntary manslaughter
arose because the trial court did not separately instruct the
jury on the elements of that crime.
The court instructed the
green jury (the jury trying Sergio and Jorge) on the elements of
voluntary manslaughter, telling the jury that it could base a
voluntary manslaughter conviction on either (1) intent to kill
44
or (2) conscious disregard for life.15
(See CALJIC 8.40.)
The
court also instructed on the two elements of an attempt to
commit a crime -- “namely, a specific intent to commit the
crime, and a direct but ineffectual act done toward its
commission.”
(See CALJIC No. 6.00.)
While the court instructed
the jury on attempted murder, it did not instruct on attempted
voluntary manslaughter.
During its deliberations, the green jury sent the trial
court a note asking about attempted voluntary manslaughter:
“Is
it appropriate to take the definition of attempt [citation to
the instructions] and the definition of manslaughter [citation
to the instructions] and combine the two definitions to arrive
at the definition of ‘attempted voluntary manslaughter’.
If
not, could we please have the definition of ‘attempted voluntary
manslaughter.’”
The court answered, “The answer is affirmative
to the first portion of the question.
See Instructions [CALJIC
Nos.] 6.00 and 8.40.”
The problem with the trial court’s answer is that, although
a jury can convict of voluntary manslaughter on a showing of
either (1) intent to kill or (2) conscious disregard for life,
it must find intent to kill to convict of attempted voluntary
manslaughter.
A conviction for attempted voluntary manslaughter
15
Using CALJIC 8.40, the court instructed the jury, in
pertinent part, as follows: “Every person who unlawfully kills
another human being without malice aforethought but either with
an intent to kill, or with conscious disregard for human life,
is guilty of voluntary manslaughter in violation of Penal Code
section 192, subdivision (a).”
45
may not be predicated on a finding, alone, that the defendant
had a conscious disregard for life.
112 Cal.App.4th at pp. 1549-1550.)
(People v. Montes, supra,
An attempt to commit a crime
must be done with the specific intent to complete that crime.
Thus, even though an intent to kill is not necessarily an
element of voluntary manslaughter, it is an element of attempted
voluntary manslaughter.
(Ibid.)
For these reasons, it was error for the trial court to tell
the jury that the jury could combine the definition of attempt
with the elements of voluntary manslaughter to arrive at a
definition of attempted voluntary manslaughter.
B.
Prejudice
The Attorney General and defendants do not agree concerning
the proper test to be applied to determine whether the error in
instructing the jury concerning attempted voluntary manslaughter
was harmless.
The Attorney General argues we must apply the
state test, which asks whether it is reasonably probable that
defendants would have obtained a better result.
Watson, supra, 46 Cal.2d at p. 836.)
(See People v.
Defendants assert that the
instructional error violated their federal constitutional rights
and, therefore, the more exacting harmless-beyond-a-reasonabledoubt standard applies.
U.S. 18.)
(See Chapman v. California, supra, 386
We need not resolve the dispute because it appears
the error was prejudicial under either standard.
Even under the
more lenient state standard, the error was prejudicial.
The prejudice here is found in the possibility that the
jury convicted defendants of attempted voluntary manslaughter
46
having found no intent to kill but instead simply a conscious
disregard for life.
The act of shooting at an occupied vehicle
does not, of itself, necessarily establish an intent to kill.
Although there was evidence that one or more bullets hit the car
occupied by Covington and Osorio and therefore Sergio and Jorge
were shooting at the vehicle, or at least in the direction of
the vehicle, the jury was not required on this evidence to find
that Sergio and Jorge intended to kill.
We therefore conclude
that the error in instructing the jury was prejudicial.
C.
Defendants’ Right to Raise Issue
The Attorney General additionally argues that, even though
the instructions were erroneous with respect to the elements of
attempted voluntary manslaughter, Sergio and Jorge are not
entitled to raise this argument because the instruction on
attempted voluntary manslaughter inured to their benefit.
disagree.
We
The precedent cited by the Attorney General does not
support his argument.
To make his argument, the Attorney General relies,
primarily, on People v. Lee (1999) 20 Cal.4th 47.
In Lee, the
trial court instructed the jury on murder and voluntary
manslaughter, citing malice as the main difference between the
two crimes.
After the jury found the defendant guilty of
voluntary manslaughter, the defendant argued on appeal that he
was guilty either of murder or of nothing at all because the
evidence did not support a finding that he lacked malice.
Supreme Court rejected the argument:
The
“It has long been the rule
in this state that, in the absence of prejudice, a defendant may
47
not complain of error favorable to the defendant, including the
giving of correct, but inapplicable, instructions and return of
a verdict of an offense less than that which the evidence
shows.”
(20 Cal.4th at p. 57.)
We emphasize here that Sergio and Jorge are not arguing
that their convictions for attempted voluntary manslaughter
should be reversed because the evidence necessarily establishes
malice.
That argument would be precluded by Lee.
Instead, they
argue that a flawed instruction on attempted voluntary
manslaughter prejudiced them because it allowed the jury to base
convictions for attempted voluntary manslaughter on a finding
that defendants had a conscious disregard for life.
The Attorney General argues:
“[Sergio and Jorge] received
the benefit of an attempted voluntary manslaughter instruction
which was unwarranted based on the evidence, . . . and they may
not obtain a reversal based on an error favorable to them.”
The
problem with this argument and the Attorney General’s reliance
on Lee is that the instruction on attempted voluntary
manslaughter was incorrect, unlike the instruction on voluntary
manslaughter in Lee.
We may agree, as discussed above in part
IV, that the evidence did not support a defense of sudden heat
of passion or unreasonable belief in the need to defend,
theories that would negate malice.
Nevertheless, even assuming
defendants would have been precluded from arguing that a correct
instruction on attempted voluntary manslaughter should not have
been given, there is nothing in the law that precludes them from
48
arguing that the attempted voluntary manslaughter instruction
was flawed and caused prejudice.
Accordingly, having concluded that Sergio and Jorge were
prejudiced by an incorrect instruction concerning attempted
voluntary manslaughter, we must reverse their convictions of
attempted voluntary manslaughter (counts two and three) and
remand for retrial.16
X
Availability of Witness
(Jorge)
Jorge contends that (1) the prosecutor committed
prejudicial misconduct by entering into a “slow plea” agreement17
with Covington, thus failing to make Covington available as a
witness, and (2) the prosecutor committed misconduct and the
trial court erred by not granting Covington use immunity so that
he could testify in Jorge’s trial.
The contentions are without
merit.
16
Jorge asserts that the abstract of judgment fails to
indicate how the terms imposed for attempted voluntary
manslaughter are to run in relation to the term imposed for
second degree murder. Because we reverse those convictions, we
need not consider this assertion.
17
A “slow plea” agreement is a stipulation to submit a case
to the trial court for decision on the preliminary hearing
transcript with the expectation that the trial court would find
the defendant guilty. (People v. Sanchez (1995) 12 Cal.4th 1,
27-28.)
49
A.
Background
Covington was originally charged in the same information as
Carlos, Sergio, and Jorge.
The counts against Covington alleged
murder, vehicular manslaughter, and felony hit and run.
The
prosecutor and Covington negotiated a slow plea on the vehicular
manslaughter and hit and run counts, along with a probation
violation in connection with these crimes, in exchange for a
sentence of seven years four months in state prison and
dismissal of the murder charge.
After Covington entered the
slow plea and the court found him guilty, the prosecutor filed
an amended information deleting Covington as a defendant and
adding him as a victim of attempted murder.
Counsel for
Covington stated that Covington intended to appeal his
conviction and would assert his Fifth Amendment rights if he
were called to testify in this case.
Counsel for Jorge objected to the slow plea arrangement for
Covington because it did not make him available as a witness,
whereas a guilty or no contest plea would have rendered
Covington unable to assert his Fifth Amendment rights.
Counsel
for Jorge asserted that allowing Covington to enter a slow plea
violated Jorge’s confrontation rights and amounted to
suppression of evidence by the prosecution.
Therefore, argued
counsel, the trial court was required either to require
Covington to waive his appellate rights as a condition of
entering the slow plea or to continue Jorge’s trial until after
Covington’s appeal was final.
The trial court denied these
requests.
50
During the trial of the three codefendants, counsel for
Jorge attempted to call Covington as a witness, but Covington
asserted his Fifth Amendment rights.
Counsel for Jorge
requested the court either to order the prosecutor to grant
Covington use immunity or to instruct the jury that the
prosecution had suppressed evidence.
B.
The court declined.
Legal Analysis
1.
Slow Plea Agreement
We reject Jorge’s argument that the prosecutor committed
prejudicial misconduct by entering into an agreement with
Covington whereby he would enter a slow plea because (1) there
is no evidence in this record that Covington would have pled
guilty or no contest and thus have become available as a witness
in the absence of the slow plea agreement and (2) it is not
reasonably probable that Jorge would have obtained a more
favorable result.
An unstated premise of Jorge’s argument concerning
prosecutorial misconduct is that, if the prosecution had refused
to agree to the slow plea, Covington would have pled guilty or
no contest and would have become available as a witness, unable
to assert his Fifth Amendment rights.
We reject this premise
because there is nothing in this record to support it.
Covington could not preserve for appeal the issue of the
sufficiency of the evidence to convict him if he pled guilty or
no contest.
In the absence of the slow plea, Covington’s choice
of whether to plead guilty or no contest or to go to trial on
the charges is unknown.
Since the prosecution could not force
51
Covington to plead guilty or no contest, the prosecution did not
suppress evidence.
We also conclude that, even if we were to find that the
prosecution had control over whether Jorge would plead guilty or
no contest, there is no prejudice.
Jorge and the Attorney General disagree as to what standard
we must apply in determining whether the prosecutor committed
prejudicial misconduct in suppressing Covington’s potential
testimony.
Jorge contends that the proper standard is found in
United States v. Valenzuela-Bernal (1982) 458 U.S. 858 [73
L.Ed.2d 1193] (Valenzuela-Bernal), while the Attorney General
asserts that the proper standard is found in California v.
Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413].
Although Valenzuela-Bernal concerned the loss of a deported
witness and Trombetta involved the loss of physical evidence, we
note the United States Supreme Court now applies the Trombetta
standard to the loss of both physical evidence and witnesses.
(See Kyles v. Whitley (1995) 514 U.S. 419, 433-434, 441-445 [131
L.Ed.2d 490, 505-506, 510-513].)
We will thus do the same.
(See People v. Lopez (1988) 198 Cal.App.3d 135, 144-146 [Court
of Appeal, Fourth Appellate District, applying Trombetta
standard to determine materiality of deported witnesses]; but
cf. People v. Valencia (1990) 218 Cal.App.3d 808, 811 [Court of
Appeal, Fifth Appellate District, applying Valenzuela-Bernal
standard to determine materiality of deported witnesses].)
“‘Whatever duty the Constitution imposes on the States to
preserve evidence, that duty must be limited to evidence that
52
might be expected to play a significant role in the suspect's
defense.[fn.]
To meet this standard of constitutional
materiality [citation], evidence must both possess an
exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.’
(California v. Trombetta, supra, 467 U.S.
479, 488-489 [81 L.Ed.2d 413], italics added.)
More recently,
the high court held that ‘unless a criminal defendant can show
bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due
process of law.’
(Arizona v. Youngblood (1988) 488 U.S. 51, 58
[102 L.Ed.2d 281, 289].)”
(People v. Webb (1993) 6 Cal.4th 494,
519.)
First, we find no bad faith on this record.
Jorge would
have us infer from the prosecutor’s slow plea agreement with
Covington an intention to deprive him of Covington’s testimony.
He states:
“Other than an intent to deprive the defendants of
the opportunity to call Covington as a witness, there is no
discernible reason for the prosecutor’s actions.”
We disagree.
This record gives us no reason to believe that Covington would
have pled guilty or no contest if he had not been offered the
slow plea.
Accordingly, finding bad faith in the prosecutor’s
actions is speculative, at best.
And second, the exculpatory value of Covington’s testimony
is dubious.
Osorio testified, giving an eyewitness account from
the perspective of one of the men at whom Sergio and Jorge
53
fired.
Other than claiming that the jurors should have had a
chance to “eyeball” the “Old Gangster,” -- Covington, that is -Jorge speculates that questioning Covington concerning his
motives and reasons for his actions may have swayed the jury or
that Covington’s answers to questions may have differed from
Osorio’s.
This is nothing more than speculation and fails to
support a finding that Jorge’s constitutional rights were
violated.
2.
Use Immunity
The refusal of the prosecutor and the court to grant
Covington use immunity was not an abuse of discretion and also
does not support reversal of Jorge’s convictions.
The decision to grant use immunity is vested in the
prosecutor.
(Daly v. Superior Court (1977) 19 Cal.3d 132, 146.)
Therefore, the contention that the trial court somehow erred in
failing to force the prosecution to grant Covington use immunity
so that he could be required to testify is without merit.
As to the prosecutor’s decision not to grant use immunity,
we also find no error.
Under Ninth Circuit jurisprudence,
cited by Jorge, “the prosecution’s refusal to grant use immunity
to a defense witness denies the defendant a fair trial only
when (1) the witness's testimony would have been relevant, and
(2) the prosecution refused to grant the witness use immunity
with the deliberate intention of distorting the fact-finding
process.
[Citation.]”
(Williams v. Woodford (9th Cir. 2004)
384 F.3d 567, 600.)
54
While Covington’s testimony would have been relevant, there
is no indication in this record that the prosecution refused to
grant Covington use immunity with the deliberate intention of
distorting the factfinding process.
As noted above, Osorio
testified and, therefore, Covington’s testimony would have been
cumulative in most ways.
Furthermore, there is nothing but
speculation concerning what Covington’s testimony might have
added, or that the prosecutor knew of testimony Covington could
have added in this trial.
Accordingly, we conclude the
prosecutor did not commit misconduct and Jorge’s fair trial
rights were not violated.
XI
Personal Discharge Enhancements
(Sergio and Jorge)
Sergio and Jorge contend that the enhancements pursuant to
section 12022.53, subdivision (d) attached to counts one
(murder) and four (shooting at an occupied vehicle) must be
reversed because there was insufficient evidence to conclude
that their shooting at Covington and Osorio caused Rocky’s
death.
We conclude the evidence was sufficient.18
“Section 12022.53, also known as the ‘10-20-life’ law
(Assem. Bill No. 4 (1997–1998 Reg. Sess.)), was enacted in 1997
18
Although we must reverse the second degree murder
convictions (count one), we conclude the evidence was sufficient
to support the enhancements pursuant to section 12022.53,
subdivision (d), which, therefore, may be retried along with the
murder count. As to count four, which we do not reverse, no
retrial on this enhancement is necessary.
55
to substantially increase the penalties for using firearms in
the commission of enumerated felonies . . . .
[Citations.]
The
statute prescribes sentence enhancements (prison terms of 10
years, 20 years, and 25 years to life) for increasingly serious
circumstances of firearm use.
[Citations.]
. . .
Subdivision
(d), the provision at issue here, requires imposition of an
additional, consecutive 25-years-to-life term when the defendant
‘personally and intentionally discharges a firearm and
proximately causes great bodily injury, as defined in Section
12022.7, or death, to any person other than an
accomplice . . . .’
[Citations.]”
Cal.App.4th 1141, 1148-1150.)
(People v. Palmer (2005) 133
Subdivision (d) specifically
applies to both murder and shooting at an occupied vehicle.
Sergio and Jorge assert that subdivision (d) of section
12022.53 is not applicable to this case because (A) the statute
was intended to apply only to death by bullet or gunshot19 and
(B) their personal discharge of firearms did not proximately
cause Rocky’s death.
A.
Neither assertion is persuasive.
Death by Bullet or Gunshot
Defendants base their argument that subdivision (d) of
section 12022.53 was intended to apply only to death by bullet
or gunshot on (1) the language of the statute, (2) the
19
While section 12022.53, subdivision (d) also includes great
bodily injury, we limit our discussion to death proximately
caused by personal and intentional discharge of a firearm
because Rocky died.
56
legislative history associated with the statute, and (3) a
survey of published cases.
1.
Language of the Statute
Contrary to defendants’ suggestion, the language of the
statute does not support their view that the statute applies
only to death by bullet or gunshot.
The statute applies, by its
terms, to personal and intentional discharge of a firearm which
“proximately causes . . . death.”
(§ 12022.53, subd. (d).)
The
Legislature could have, but did not, state that the statute
applies when a defendant shoots someone, causing that person’s
death.
Instead, the statute is worded much more broadly,
setting up proximate cause as the required nexus between the
personal discharge and the death.
(People v. Bland (2002) 28
Cal.4th 313, 337.)
The holding in Palmer supports this broader definition of
criminal liability.
In Palmer, a police officer broke his ankle
diving out of the way as the defendant shot at him.
The court
held that “a defendant can proximately cause injury by
discharging a firearm within the meaning of section 12022.53,
subdivision (d) even if his or her bullet does not actually
strike the victim.”
(People v. Palmer, supra, 133 Cal.App.4th
at p. 1150, italics in original.)
“[S]ection 12022.53[,
subdivision] (d) does not require that the defendant fire a
bullet that directly inflicts the harm.”
supra, 28 Cal.4th at p. 338.)
(People v. Bland,
Accordingly, we reject
defendants’ assertion that the language of the statute precludes
its application to the facts of this case.
57
2.
Legislative History
The legislative history argument is likewise unavailing.
Defendants assert generally, without directing us to any
specific components, that the analyses of the bill enacting
section 12022.53 in 1997 and the language of the bill amending
that section in 1998 show that the Legislature intended that the
discharge of the firearm must, in defendants’ words, “directly
cause the death” in order to impose the enhancement.
It is
unnecessary to quote all of the analyses and bills because
nowhere in those analyses and bills does the Legislature exhibit
an intent to limit the broad language of the statute, discussed
above.
3.
Published Cases
Defendants argue:
“A survey of the published case law
reveals that section 12022.53, subdivision (d) has almost
universally been applied only in cases where the death or injury
was directly caused by a gunshot.”
(Italics added.)
This
argument fails because it admits that there is no universal
application only to death by gunshot.
As defendants discuss in
their argument, Palmer held that the bullet need not hit the
victim.
(133 Cal.App.4th at p. 1150.)
That there are some
cases, applying section 12022.53, subdivision (d), in which the
victim was shot by the defendant does nothing in logic or reason
to prove that the subdivision can be applied only in such cases.
We therefore move on to the argument that defendants’ discharge
of the firearms did not proximately cause Rocky’s death.
58
B.
Proximate Causation
Defendants contend that there was an insufficient nexus
between their personal discharges of firearms and Rocky’s death
to find that the discharges proximately caused the death.
We
conclude that the nexus was sufficient under the facts of this
case.
Using CALJIC No. 17.19.5, which correctly defines proximate
causation for the purpose of applying section 12022.53,
subdivision (d) (People v. Bland, supra, 28 Cal.4th at p. 336),
the court instructed the jury:
“A proximate cause of great
bodily injury or death is an act or omission that sets in motion
a chain of events that produces as a direct, natural and
probable consequence of the act or omission the great bodily
injury or death and without which the great bodily injury or
death would not have occurred.”
“An intervening, superseding cause can relieve a defendant
of criminal liability if the act ‘break[s] the chain of
causation’ (People v. Wattier (1996) 51 Cal.App.4th 948, 953)
and the defendant’s act is no longer a substantial factor in
producing the injury.”
(People v. Burnett (2003) 110
Cal.App.4th 868, 877.)
In Burnett, the defendant grabbed a dog
from its owner’s lap and threw it into the street.
Dazed and
confused, the dog wandered into the path of a minivan and was
killed.
(Id. at p. 870.)
The Burnett court determined that,
even though the dog wandered into the path of the minivan, the
dog’s actions and the passing of the minivan were not
superseding factors and the defendant was criminally liable for
59
the dog’s death because it was foreseeable that a vehicle would
pass by while the dog was in the street.
“The natural
consequence of defendant’s throwing [the dog] onto a dark,
heavily traveled road was death from the wheels of a passing
vehicle.”
(Id. at p. 875.)
Here, the accident that was the immediate cause of Rocky’s
death was a foreseeable result -- a direct, natural and probable
consequence -- of defendants’ discharges of their firearms.
They shot at the vehicle occupied by Covington and Osorio.
Using the most obvious means of escape available, Covington
accelerated rapidly and, still within the zone of danger from
defendants’ shots, entered Rio Linda Boulevard without stopping
or observing whether traffic was approaching.
Even after the
accident, Covington believed he was in danger of being shot.
The victims’ flight without regard for traffic laws is as
predictable when someone shoots at an occupied vehicle as is a
stampede for the door when someone yells fire in a crowded
theater.
Therefore, defendants’ personal discharges of their
firearms proximately caused Rocky’s death, and the enhancement
pursuant to section 12022.53, subdivision (d), subjecting
defendants to a consecutive sentence of 25 years to life was
supported by substantial evidence.20
20
In his reply brief and at oral argument, Jorge claimed that
Covington’s conviction for vehicular manslaughter was
inconsistent with a finding in this case that the shooting by
Sergio and Jorge proximately caused Rocky’s death. What may or
may not be an inconsistent verdict in a different case, however,
has no relevance to whether the verdict is supported by
60
XII
Admission of Extrajudicial Statements
(Sergio)
Sergio contends that the trial court violated his Sixth
Amendment rights by admitting extrajudicial statements made by
Jorge.
(See Crawford v. Washington (2004) 541 U.S. 36 [158
L.Ed.2d 177] (Crawford).)
We conclude that Sergio forfeited
this contention by failing to object to admission of the
statements in the trial court.
In any event, we conclude that,
even if admission of the extrajudicial statements was error, it
was harmless beyond a reasonable doubt.
“The confrontation clause applies to hearsay statements
that are ‘testimonial’ in nature, including statements made
during police interrogation.
541 U.S. 36.)
(Crawford v. Washington, supra,
Such hearsay may be admitted at trial only if the
declarant is unavailable and the defendant has had a previous
opportunity to cross-examine the declarant.
The high court
recently concluded that hearsay statements are testimonial when
made in the course of police interrogation and ‘the
circumstances objectively indicate that there is no . . .
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.’
(Davis v. Washington
substantial evidence in this case. (See People v. Avila, supra,
38 Cal.4th at p. 600 [inconsistent verdicts not cause for
reversal].)
61
(2006) 547 U.S. 813, [821-823] [165 L.Ed.2d 224].)”
(People v.
Ledesma (2006) 39 Cal.4th 641, 709.)
On September 8, 2003, before trial, the court discussed
with the parties the matter of separate juries, emphasizing the
need to comply with constitutional principles concerning
admission of a codefendant’s statement.
(See Bruton v. United
States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton); People v.
Aranda (1965) 63 Cal.2d 518 (Aranda).)
Counsel for Sergio
agreed that he would work with the prosecutor to determine what
would be redacted from Jorge’s statements.
With this
understanding, Sergio waived his right to be tried with a jury
separate from Jorge’s.
On March 8, 2004, still before trial, the United States
Supreme Court decided Crawford, supra, 541 U.S. 36.
The
prosecution’s case began a month later, in April 2004.
Although
Crawford was decided before the trial, it was not discussed
during the trial.
Neither did Sergio object to any specific
evidence based on Bruton or Aranda.
The statements at issue here were made by Jorge, who did
not testify at trial, to an officer during interrogation.
Although Jorge’s statements presented to the jury were wideranging, Sergio focuses on one particular aspect in arguing that
the court committed prejudicial error.21
21
When Jorge was
Concerning other portions of Jorge’s statement presented to
the jury, Sergio states that they were not prejudicial because
they were consistent with his own statements and testimony.
62
interviewed by Detective Aurich of the Sacramento County
Sheriff’s Department, Jorge stated that they (meaning Carlos,
Sergio, and Jorge) pulled out of the AM/PM and “followed” or
“chased” the “red car” -- that is, the Pontiac.
These
statements that they were following or chasing the red car
conflicted with Sergio’s testimony that, although they pulled
out of the AM/PM onto Jessie Avenue, going in the same direction
as the red car, they were not following the red car but instead
were simply taking the back streets (not the freeway) to
Roseville.
The trial court instructed the jury not to consider
extrajudicial statements made by one defendant as evidence
against the other defendant.
The jury was told not to consider
evidence admitted for a limited purpose in any way not
consistent with the purpose for which it was admitted.
On appeal, Sergio contends that the failure to redact the
parts of Jorge’s statement concerning following or chasing the
red car constituted Aranda-Bruton error.
He also contends that
their admission violated Crawford, despite the fact that there
was a limiting instruction given.
We reject these contention because Sergio did not make a
timely and specific objection to the evidence.
A timely and
specific objection is required to preserve an evidentiary issue
for appeal, including a confrontation clause claim.
(People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.)
63
Indeed,
in Crawford, itself, the defendant made a timely and specific
objection.
(Crawford, supra, 541 U.S. at p. 40.)22
Even assuming that Jorge’s statements concerning following
or chasing the red car were improperly admitted pursuant to
Aranda, Bruton, or Crawford, and that this issue was properly
preserved for review, we cannot reverse the conviction for
shooting at an occupied vehicle, with its accompanying
enhancements, because the error was harmless beyond a reasonable
doubt.23
(See People v. Geier (2007) 41 Cal.4th 555, 608
[applying harmless-beyond-a-reasonable-doubt standard to
confrontation clause error].)
As to the conviction for shooting at an occupied vehicle,
the matter of whether Carlos, Sergio, and Jorge were chasing the
red car or happened to simply be going in the same direction out
of the AM/PM has little relevance.
The evidence, including
Sergio’s statement and testimony, that Sergio and Jorge shot at
the red car is overwhelming.
Therefore, Jorge’s statements that
they were following or chasing the red car were harmless.
22
In his reply brief filed on April 5, 2007, and in a
supplemental brief filed on April 13, 2007, both several months
after the Attorney General filed his respondent’s brief, Sergio
asserts, perfunctorily, that the failure to interpose a timely
and specific objection constituted ineffective assistance of
counsel. We will not consider such a claim made for the first
time after the respondent has filed his brief. (People v.
Alvarez (1996) 14 Cal.4th 155, 241, fn. 38.) In any event, as
noted below, any error was harmless beyond a reasonable doubt.
23
Because we conclude that the murder and attempted voluntary
manslaughter convictions must be reversed, we need not determine
whether any evidentiary error affected those convictions.
64
Sergio claims that Jorge’s statements prejudiced Sergio
because they made it more likely that the jury would find that
the crime was committed for the benefit of a criminal street
gang.
We disagree.
The evidence that Sergio was a Sureños gang
member was overwhelming.
It was undisputed that Covington and
Osorio were Norteños and that Covington yelled at Carlos at the
AM/PM.
With all of the evidence of gang membership and the
exchange between Carlos and Covington, it is not reasonable to
conclude that the jury would have found no gang-related reason
for Sergio’s shooting at the red car if Jorge’s statement had
been redacted to exclude the comments about following or chasing
the red car.
XIII
Street Gang Enhancements
(Sergio and Jorge)
Sergio and Jorge contend that the evidence was insufficient
to sustain the finding that the shooting was done for the
benefit of a criminal street gang.
As just noted, we believe
the evidence was not only sufficient, but overwhelming.
reject defendants’ argument for three reasons:
We
(A) defendants
have forfeited the sufficiency-of-evidence argument by failing
to base it on a view of the evidence in the light most favorable
to the convictions, (B) in any event, defendants fail to
establish insufficiency of the evidence, and (C) a perceived
inconsistency between the attempted voluntary manslaughter
convictions and the criminal street gang enhancements does not
require reversal.
65
A.
Failure to Base Argument on Evidence
Defendants can make their argument only by
mischaracterizing the evidence, by failing to view the
evidence in its light most favorable to the judgment.
example, they state:
For
“The Legislature did not intend to
punish those who, affiliating themselves with an identifiable
group for protection, are attacked and defend themselves from
being attacked by one Norteño who was acting to promote his
gang. . . .
Here, the crimes were committed in reaction to an
attack by Julio Covington.”
This mode of argument amounts to a waiver of the
sufficiency-of-evidence contention.
“Where the appellant
challenges the sufficiency of the evidence, the reviewing court
starts with the presumption that the record contains evidence
sufficient to support the judgment; it is the appellant's
affirmative burden to demonstrate otherwise.
[Citations.]
The
appellant’s brief must set forth all of the material evidence
bearing on the issue, not merely the evidence favorable to the
appellant, and must show how the evidence does not sustain the
challenged finding.
[Citations.]
If the appellant fails to set
forth all of the material evidence, its claim of insufficiency
of the evidence is forfeited.
[Citations.]”
(Cequel III
Communications I, LLC v. Local Agency Formation Com. of Nevada
County (2007) 149 Cal.App.4th 310, 329, fn. 7, italics in
original.)
Therefore, we reject defendants’ sufficiency-of-evidence
argument because it is flawed in the making.
66
B.
Sufficiency of Evidence
It also flawed in substance.
Proof of the gang enhancement involves two elements:
that
the crime was (1) “committed for the benefit of, at the
direction of, or in association with any criminal street gang,”
(2) “with the specific intent to promote, further, or assist in
any criminal conduct by gang members.”
(§ 186.22, subd.
(b)(1).)
There can be no serious dispute on appeal that
(1) Covington and Osorio were Norteños, (2) Carlos, Sergio,
and Jorge were Sureños, and (3) Norteños and Sureños generally
hate each other and are involved in violence against each other.
Covington yelled at Carlos at the AM/PM, identifying himself as
a Norteño and insulting Carlos.
insult.
In return, Carlos yelled an
When Sergio and Jorge returned to the car, they left
the AM/PM to retaliate for the disrespect, a reasonable
inference from the evidence.
Gang culture encourages such
retaliation to protect the gang’s reputation and hurt opposing
gang members.
When Carlos, Sergio, and Jorge found the Pontiac,
they fired on Covington and Osorio.
This evidence established that the shooting was done for
the benefit of the Sureños because it protected the Sureños
gangs’ reputation by retaliating for an insult and had the
potential to harm opposing gang members.
It was done with
specific intent to promote the Sureños because Sergio and Jorge
knew that Covington and Osorio were Norteños and, for that
reason, shot at them.
67
The conclusions were also supported by expert evidence
concerning these gangs, their activities, and their motives.
The evidence was, therefore, sufficient to sustain the criminal
gang enhancements.
C.
Perceived Inconsistency Between Verdicts and Findings
We also reject defendants’ additional argument that the
criminal street gang enhancement must be reversed because it is
inconsistent with the verdict of attempted voluntary
manslaughter.
Sergio and Jorge assert that “it appears” that
the jury convicted them of attempted voluntary manslaughter
because the jury found Covington’s actions were provocative and
aggressive.
They also assert “the jury agreed with the defense
that [Covington] did not get lost trying to leave the area;
rather, [Covington] stayed in the neighborhood to further the
fight he started at the AM/PM and that he used his red car in an
aggressive manner to assault the blue car in which Jorge, Sergio
and Carlos were riding.”
This is mere speculation.
We have no
way of knowing why the jury acquitted Sergio and Jorge of
attempted murder and found them guilty of the lesser offense of
attempted voluntary manslaughter but also convicted them of
second degree murder and found true, as to all counts, that they
were committed for the benefit of a criminal street gang.
It
is, simply, an unknown.
In any event, the unstated premise that inconsistent
verdicts must be resolved on appeal or that they bear some
significance to the sufficiency-of-evidence issue is false.
“As
a general rule, inherently inconsistent verdicts are allowed to
68
stand.
[Citations.]
For example, ‘if an acquittal of one count
is factually irreconcilable with a conviction on another, or if
a not true finding of an enhancement allegation is inconsistent
with a conviction of the substantive offense, effect is given to
both.’
[Citations.]
Although ‘“error,” in the sense that the
jury has not followed the court’s instructions, most certainly
has occurred’ in such situations, ‘it is unclear whose ox has
been gored.’
[Citation.]
It is possible that the jury arrived
at an inconsistent conclusion through ‘mistake, compromise, or
lenity.’
[Citation.]
Thus, if a defendant is given the benefit
of an acquittal on the count on which he was acquitted, ‘it is
neither irrational nor illogical’ to require him to accept the
burden of conviction on the count on which the jury convicted.
[Citation.]”
(People v. Avila, supra, 38 Cal.4th at p. 600.)
DISPOSITION
As to defendant Carlos Zarazua, the judgment is modified to
strike the true findings of section 12022.53 enhancements as to
counts four and five.
As modified, the judgment is affirmed.
As to defendants Sergio Zarazua and Jorge Ramirez, the
convictions for second degree murder (count one) and attempted
voluntary manslaughter (counts two and three) are reversed and
remanded for retrial and resentencing.
In all other respects,
the judgment is affirmed.
NICHOLSON
We concur:
RAYE
, J.
BUTZ
, J.
69
, Acting P.J.