P. v. Carlos
Filed 6/5/13 P. v. Carlos CA2/7
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. JORGE HUMBERTO CARLOS, Defendant and Appellant. | B242214 (Los Angeles County Super. Ct. No. VA111515) |
APPEAL from
a judgment of the Superior Court
of
County, Michael A. Cowell, Judge. Affirmed.
Mark D.
Lenenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, and Zee Rodriguez and
David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Appellant
Jorge Humberto Carlos appeals from the judgment entered following his
conviction of one count of first degree
murder (Pen. Code,
name="_ftnref1" title="">[1]
187, subd. (a)), two counts of attempted willful, deliberate and premeditated
murder (§§ 664, 187, subd. (a)), two counts of
246), and one count of possession of a firearm by a felon (§ 12021, subd. (a)),
with true findings on various firearm and gang enhancements (§§ 12022.53,
subds. (b), (c), (d), and (e), 186.22, subd. (b)). Carlos raises the following arguments on
appeal: (1) the evidence was
insufficient to support one of the convictions for shooting at an occupied
motor vehicle because it was based on uncorroborated accomplice testimony; (2)
the trial court erred in failing to instruct the jury on a witness’s status as
an accomplice with CALJIC Nos. 3.16 and 3.19; (3) the trial court erred in
instructing the jury on the natural and probable consequences theory of
liability with CALJIC No. 3.02; and (4) there was cumulative error. We affirm.
I.
The Prosecution Evidence
A.
July
12, 2009 Shooting
On the afternoon of July 12, 2009, Ernie Martinez was
driving a white Ford Explorer when he saw Carlos and Heraclio Meza standing on
a street corner in Norwalk, California. Martinez
had known both Carlos and Meza for a few years.
Carlos, who was known as “Bones,†and Meza, who was known as “Shorty,â€
were members of the Vario Norwalk gang. Martinez
agreed to give Carlos and Meza a ride to a friend’s house, and dropped them off
near the corner of Hopland Street
and Elaine Avenue in Norwalk. As Martinez
waited at the intersection to make a turn, Carlos and Meza suddenly got back
into the Ford Explorer and began shooting at another vehicle.
passenger seat and Carlos fired a gun from the left rear passenger seat
directly behind Martinez. Immediately after the shooting, Carlos and
Meza got out of the vehicle and Martinez
drove away.
Raquel Escamilla observed the
shooting from her house. She saw a white
SUV or minivan traveling on Elaine Avenue
followed by a white pickup truck. Two
shots were fired from the right passenger side of the SUV toward the
truck. The SUV drove away on Hopland
Street and the pickup truck drove away on Elaine
Avenue.
Escamilla did not see the occupants in either vehicle. A deputy sheriff responding to the scene of
the shooting recovered two nine-millimeter shell casings from the street near
the intersection of Hopland Street
and Elaine Avenue.
The vehicle that was shot at
followed Martinez for about 30
minutes until he drove onto the freeway.
A short time later, while Martinez
was still on the freeway, a white pickup truck pulled up next to his Ford
Explorer. A man in the pickup truck took
out a gun and fired several shots at Martinez’s
vehicle before driving away. Martinez
continued driving to the West Covina Mall, where he was detained after being
observed by an officer running through the mall. When the police later located Martinez’s
Ford Explorer in the mall parking lot, the driver’s side window had been
shattered and the vehicle had several bullet holes. A single .40 caliber shell casing was
recovered from the floorboard of Martinez’s
vehicle.
On July 13, 2009, Martinez
identified both Carlos and Meza in a six-pack photographic lineup. Under Carlos’s photograph, Martinez
wrote, “This is George, aka Bones. Shot
out of my car.†Under Meza’s photograph,
Martinez wrote, “This is Shorty,
the guy in my vehicle in the front [seat].â€
Martinez testified at trial
under a grant of immunity.
B.
July
16, 2009 Shooting
On July 16, 2009, at about 7:00
p.m., Victor Flores and his two younger brothers, Ernesto Flores
and Alejandro Flores, were headed to a meeting for soccer coaches in Norwalk.
Ernesto was in the front passenger seat, and Alejandro was in the rear
passenger seat. None of the Flores
brothers was a member of a gang or had any weapons. As Victor was driving along the street, a Toyota
sedan pulled up next to his vehicle. The
driver and front passenger in the Toyota
made eye contact with Ernesto and acknowledged him by lifting their chins. Carlos was the driver of the Toyota
and Meza was the passenger.
Victor turned into the parking lot
of a Stater Brothers shopping center and parked his vehicle in front of a
soccer shop. The Toyota
pulled up behind Victor’s Mitsubishi and stopped perpendicular to it. The driver’s side of the Toyota
was facing the back of the Mitsubishi and blocking it in the parking
space. Victor looked in his rear view
mirror and then over his shoulder at the occupants in the Toyota. From the driver’s seat of the Toyota,
Carlos pointed a gun at the Mitsubishi through the open window. Meza exited the Toyota
and approached the right side of the Mitsubishi with his hand in his
pocket. Victor yelled at his brothers to
duck as he shifted his vehicle into reverse and accelerated into the Toyota. He then hit some bushes and drove away. As Victor was maneuvering the Mitsubishi, he
heard seven loud gunshots and felt his vehicle being struck with bullets. Ernesto felt a blast of heat by his head.
Victor and Ernesto were not injured
in the shooting. Alejandro was fatally
shot in the right side of his head and his right knee. Two .40 caliber Smith and Wesson bullets were
recovered from Alejandro’s body. Based
on a forensic examination of the Mitsubishi, at least three different bullets
entered the vehicle during the shooting.
The trajectory of the two bullets that struck Alejandro was rear to
front from the passenger’s side to the driver’s side. The trajectory also had a steep downward
angle consistent with the shooter being fairly close to the vehicle. A total of five shell casings from two
separate firearms were recovered from the ground where the Mitsubishi had been
shot. There were three .38 Super caliber
casings and two .40 caliber Smith and Wesson casings. No weapons were found in the Mitsubishi.
On July 17,
2009, Ernesto reviewed a six-pack photographic lineup and identified Carlos as
resembling the driver of the Toyota.
Victor was unable to make a photographic identification at that
time. On February 22, 2010, at a live
lineup in the county jail, Victor and Ernesto each separately identified Carlos
as the driver. Victor and Ernesto later
made in-court identifications of Carlos at a preliminary hearing in May 2010
and at trial in April 2011. Victor also
separately identified Meza as the other shooter at a November 2009 preliminary
hearing.
C.
Arrests of Carlos and Meza
On July 19, 2009, at about 3:30
a.m., Meza was arrested after he was observed by a deputy sheriff crouching
behind a car. When the deputy ordered
him to stand up, Meza pulled a handgun from his pocket and threw it to the
ground. He then tried to flee, but
tripped and fell. Following his arrest,
a fully loaded Glock .40 caliber handgun was recovered from the area where Meza
had thrown it.
On July 23, 2009, at about 5:00
a.m., Carlos was arrested at his home in Norwalk. As deputies entered the house, Carlos pushed
an exterior air conditioning unit from a window and dove out of the window to
the ground. After attempting to flee on
foot, Carlos was taken into custody. A
loaded Bryco Arms nine-millimeter semi-automatic handgun was recovered under a
sofa cushion in a bedroom where Carlos and another man, Gumaro Lopez,
resided. Carlos’s residence was 0.9
miles from the Stater Brothers shopping center and 0.3 miles from Meza’s
residence.
The two .40
caliber Smith and Wesson casings recovered from the Stater Brothers parking
lot, along with the two .40 caliber Smith and Wesson bullets recovered from
Alejandro’s body, were fired from the Glock handgun seized during Meza’s
arrest. The single .40 caliber casing found
in Martinez’s Ford Explorer following the shooting at Hopland Street and Elaine
Avenue also was fired from that same Glock handgun. The two nine-millimeter casings recovered
from the intersection of Hopland Street and Elaine Avenue were fired from the
Bryco Arms semi-automatic handgun found in Carlos’s bedroom.
D.
Gang Evidence
Los Angeles
County Sheriff’s Detective Dan Leicht testified as a gang expert on the Vario
Norwalk gang. According to Detective
Leicht, the Vario Norwalk gang had approximately 550 active members with
primary activities that included robbery, assault, gun possession, and
attempted murder. The two shootings in
this case occurred within the territory claimed by the gang. Carlos was a self-admitted member of the
Vario Norwalk gang in the Primos clique.
At the time of his arrest, Carlos had numerous gang tattoos, including
“NWK†on his arm, “VN†and “WK†on his legs, “NORWALK†on his chest, “VNP†on
his back, and “PRIMOS†on his neck. Meza
was also a Vario Norwalk gang member and had tattoos of “NORW†on his thigh and
“BARRIO†on his knee. When presented
with a hypothetical based on the facts in this case, Detective Leicht opined
that each of the shootings would have been committed for the benefit of and in
association with the Vario Norwalk gang.
Detective Leicht further explained that it was common for two gang
members to commit a shooting in concert so that each member could provide
protection for the other and facilitate completion of the crime.
II.
The Defense Evidence
On August 7, 2009, Los Angeles
County Sheriff’s Detective Manual Avina and two other detectives were working
undercover at the county jail. Posing as
jail inmates, the detectives spoke at length with Meza while he was in custody
in his cell. Meza told the detectives
that he was in custody for the Stater Brothers case which involved a
murder. He also initially indicated that
whenever he committed any crimes, he was either by himself or with his
girlfriend. At one point, Meza was
removed from the cell to provide a DNA sample.
He returned with a court order that listed both his and Carlos’s names,
and after reading the order aloud, he said that he did not know who Carlos
was.
In describing the Stater Brothers
shooting to the undercover detectives, Meza stated that he was driving with his
girlfriend when he saw an Eclipse with three individuals that he recognized as
enemies from a rival gang. Meza blocked
the Eclipse in the parking lot, exited his vehicle, and then fired a total of
ten shots at the driver, front passenger, and rear passenger who Meza thought
was armed with a rifle. Meza appeared to
take sole responsibility for the shooting and never mentioned that there was
anyone else in his vehicle who was armed.
Near the end of the conversation, after admitting his own involvement in
the shooting, Meza told the detectives that “Jorge Carlos†was his “crimey,†or
a person with whom he would commit crimes.
Doreen Perez testified that Carlos
was a long-time friend of her son. On
July 16, 2009, at about 5:00 p.m., she saw Carlos at her house in Norwalk when
she left to attend a baseball game. When
she returned home sometime after 7:15 p.m., Carlos was still at her house and
there was a strong police presence in the area.
Albert Perez and Carlos Perez both testified that on July 16, 2009,
Carlos came to their house in the afternoon and only left for about 30 minutes
to change his clothes at his nearby home.
Carlos was still at their house when they saw a number of police cars
and helicopters circling the neighborhood.
Dr. Robert
Shomer testified as an expert on eyewitness
identifications. According to Dr.
Shomer, eyewitness identification of strangers has a very low level of
reliability and is highly influenced by a number of factors, including the
suddenness of the encounter, the existence of stress, the tendency to focus on
a weapon, the passage of time, and the suggestiveness of the procedure used to
make the identification. Additionally,
the confidence shown by a witness in making an identification does not
correlate with its accuracy. Dr. Shomer
acknowledged that he could not render an opinion as to whether any witness in
this case had made an accurate identification.
III.
Jury Verdict and Sentencing
The jury found
Carlos guilty as charged of one count of first degree murder (187, subd. (a)),
two counts of attempted willful, deliberate and premeditated murder (§§ 664,
187, subd. (a)), two counts of shooting at an occupied motor vehicle based on
the July 12 and 16, 2009 shootings (§ 246), and one count of possession of a
firearm by a felon (§ 12021, subd. (a)).
The jury made true findings that each offense was committed for the
benefit of, at the direction of, or in association with a criminal street gang,
and with the specific intent to promote, further, or assist in criminal conduct
by gang members (§ 186.22, subd. (b)).
The jury also made true findings that Carlos and a principal personally
and intentionally discharged a firearm in both the July 12 and 16 shootings,
and proximately caused great bodily injury or death in the July 16 shooting (§
12022.53, subds. (b), (c), (d), and (e)).
The trial court sentenced Carlos to total state prison term of 90 years
to life, plus an additional life term.
Carlos thereafter filed a timely notice of appeal.
DISCUSSION
I.
Accomplice Testimony
Carlos raises
two related arguments regarding the use of accomplice testimony at trial. First, he contends that the evidence was
insufficient to support his conviction for shooting at an occupied motor
vehicle based on the July 12, 2009 shooting at Hopland Street and Elaine Avenue
because the testimony of his two accomplices in the shooting, Meza and
Martinez, was not corroborated by independent evidence. Second, he claims that the trial court
prejudicially erred in failing to sua sponte instruct the jury that Meza and
Martinez were accomplices as a matter of law (CALJIC No. 3.16), or
alternatively, that the jury had to determine whether they were accomplices in
evaluating their statements (CALJIC No. 3.19).
We conclude that neither argument has merit.
A.
Applicable Law
Section 1111 provides, in relevant
part, that “[a] conviction cannot be had upon the testimony of an accomplice
unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not
sufficient if it merely shows the commission of the offense or the
circumstances thereof.†An accomplice is
defined by the statute as “one who is liable to prosecution for the
identical offense charged against the defendant on trial in the cause in which
the testimony of the accomplice is given.â€
(§ 1111.) To be chargeable with
an identical offense, a witness must be considered a principal under section
31, which defines principals as “[a]ll persons concerned in the commission of a
crime . . . whether they directly commit the act constituting the offense, or
aid and abet in its commission, or, not being present, have advised and
encouraged its commission . . . .†(§
31; see also People v. Williams
(2008) 43 Cal.4th 584, 636; People v.
Lewis (2001) 26 Cal.4th 334, 368.)
Where the evidence at trial is
sufficient to support a conclusion that a witness was an accomplice in the
defendant’s crime, the trial court has a sua sponte duty to instruct the jury
on the principles of law governing accomplice testimony. (People
v. Brown (2003) 31 Cal.4th 518, 555; People
v. Tobias (2001) 25 Cal.4th 327, 331.)
If the evidence establishes as a matter of law that the witness was an
accomplice, the court must so inform the jury and instruct it on the
corroboration requirement. (
v. Hayes (1999) 21 Cal.4th 1211, 1271.)
Likewise, if there is sufficient evidence from which a reasonable
juror could find the witness to be an accomplice, the court must instruct the
jury that if it finds by a preponderance of the evidence that a witness
was an accomplice, the witness’s testimony implicating the defendant must be
independently corroborated. (
instruct the jury that the testimony of an accomplice witness is to be viewed
with distrust. (People v. Hayes, supra,
at p. 1271; People v. Zapien, supra,
at p. 982.)
“‘A trial
court’s failure to instruct on accomplice liability under section 1111
is harmless if there is sufficient corroborating evidence in the
record.’ [Citation.] ‘Corroborating evidence may be slight, may be
entirely circumstantial, and need not be sufficient to establish every element
of the charged offense.’
[Citation.] The evidence is
‘sufficient if it tends to connect the defendant with the crime in such a way
as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]â€
(People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 303; see also People
v. Valdez (2012) 55 Cal.4th 82; 147 [“A trial court’s error in instructing
on accomplice liability under section 1111 is harmless if the record contains
‘sufficient corroborating evidence.’ . . . Corroborating evidence may be
slight, entirely circumstantial, and entitled to little consideration when
standing alone.â€].) If there is
insufficient corroboration, the omission of accomplice instructions is subject
to the harmless error analysis for state law error under People v. Watson (1956) 46 Cal.2d 818, 836. (People
v. Gonzales and Soliz, supra, at
p. 304.)
B.
Sufficient Corroborating Evidence Supported Each
Conviction
In this case, the trial court
instructed the jury on the definition of an accomplice (CALJIC No. 3.10), the
requirement that the testimony of an accomplice must be corroborated (CALJIC
No. 3.11), and the requirement that the testimony of an accomplice must be
viewed with caution (CALJIC No. 3.18).
The trial court did not instruct the jury that either Meza or Martinez
was an accomplice as a matter of law (CALJIC No. 3.16), or that the jury had to
determine whether each of them was an accomplice in any of the charged crimes
(CALJIC No. 3.19). We need not decide,
however, whether the trial court erred in failing to instruct the jury with the
full complement of accomplice instructions.
Even if we assume that the trial court should have given CALJIC Nos.
3.16 and 3.19, any such error would be harmless because there was sufficient
corroborating evidence to support each of Carlos’s convictions.
With respect to the July 12, 2009
shooting at the intersection of Hopland Street and Elaine Avenue, Martinez
directly implicated Carlos in the shooting when he testified that Carlos and
Meza jumped into his Ford Explorer and that each of them then began shooting at
another occupied vehicle. Martinez’s
testimony that both Carlos and Meza were present at the scene and fired shots
at the other vehicle was sufficiently corroborated by the prosecution’s
forensic evidence. The two
nine-millimeter casings recovered from the intersection immediately after the
shooting were fired from the Bryco Arms nine-millimeter handgun that was later
found in Carlos’s bedroom. Additionally,
the .40 caliber casing recovered from Martinez’s vehicle was fired from the
Glock .40 caliber handgun that Meza threw during his subsequent arrest. Martinez’s testimony was also corroborated by
independent evidence that Carlos and Meza committed a similar vehicle shooting
in the same area a mere four days later.
With respect to the July 16, 2009
shooting at the Stater Brothers shopping center, Meza implicated Carlos in the
shooting when he admitted his own involvement in the shooting to undercover
officers and then told them that Carlos was his “crimey,†or a person with whom
he would commit crimes. Meza’s statement
about Carlos being his “crimey†was supported by ample corroborating
evidence. The two surviving victims in
the shooting, Victor and Ernesto, testified that Carlos followed their
Mitsubishi into the shopping center and blocked in their vehicle with his
Toyota. As Carlos pointed a gun at them
from the driver’s seat of the Toyota, Meza exited the vehicle and approached
the side of the Mitsubishi. Both Carlos
and Meza then fired multiple shots at the Mitsubishi, killing Alejandro, who
was in the back seat. Following the
shooting, Victor and Ernesto separately identified Carlos as the driver of the
Toyota in a live line-up and later in court.
The forensic evidence also confirmed that two separate firearms were
discharged in the July 16 shooting, and that the fatal shots to Alejandro were
fired from the same Glock handgun that was used in the July 12 shooting.
In sum, the
prosecution presented substantial independent evidence to corroborate the
statements made by Meza and Martinez implicating Carlos in both the July 12 and
July 16 shootings. Because there was
sufficient corroborating evidence connecting Carlos to each of the charged
crimes, any alleged error by the trial court in instructing the jury on
accomplice testimony was harmless.
II.
Natural and Probable Consequences Doctrine
Carlos
contends that the trial court committed reversible error when it instructed the
jury on the natural and probable consequences theory of aiding and abetting
liability with CALJIC No. 3.02. In
particular, Carlos claims that the instruction given by the trial court
erroneously referred to the target crime as murder or attempted murder rather
than shooting at an occupied vehicle. We
agree that the target crime was misidentified in the first enumerated element
of the instruction, but conclude that such error was harmless.
A.
Relevant Instructions
The trial
court instructed the jury on the general principles of aiding and abetting
liability with CALJIC Nos. 3.00 and 3.01.
The trial court also instructed on the natural and probable consequences
doctrine with CALJIC No. 3.02, in pertinent part, as follows: “One who aids and abets another in the
commission of a crime is not only guilty of that crime, but is also guilty of
any other crime committed by a principal which is a natural and probable
consequence of the crime originally aided and abetted. [¶] In order to find the defendant guilty of
the crimes of murder or attempted murder, under this theory, as charged in
Counts 1, 2 and 3, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crimes of murder or attempted
murder were committed; [¶] 2. That the defendant aided and abetted those
crimes; [¶] 3. That a co-principal in that crime committed the crimes of murder
and attempted murder[;] and [¶] 4. The crimes of murder and attempted murder
were natural and probable consequences of the commission of the crime of
shooting at an occupied vehicle. . . . [¶] You are not required to unanimously
agree as to which originally contemplated crime the defendant aided and
abetted, so long as you are satisfied beyond a reasonable doubt and unanimously
agree that the defendant aided and abetted the commission of an identified and
defined target crime and that the crimes of murder and attempted murder were
natural and probable consequences of the commission of that target crime.†It is undisputed that the first enumerated
element of the instruction should have identified the target crime of shooting
at an occupied vehicle instead of the non-target crimes of murder and attempted
murder.
B.
Applicable Law
In a criminal case, the trial court
must instruct the jury on the general principles of law that are relevant to
the issues raised by the evidence and are necessary for the jury’s
understanding of the case. (
142, 154; People v. Blair (2005) 36
Cal.4th 686, 744-745.) An instructional
error that improperly describes or omits an element of an offense is subject to
the harmless error analysis set forth in Chapman
v. California (1967) 386 U.S. 18, 24, and requires reversal unless “‘it
appears “beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained.â€â€™â€ (
668, 774; see also People v. Lamas
(2007) 42 Cal.4th 516, 526; People v.
Flood (1998) 18 Cal.4th 470, 502-503.)
However, “‘not every ambiguity, inconsistency, or deficiency in a jury instruction
rises to the level of a due process violation. . . . “‘[A] single instruction
to a jury may not be judged in artificial isolation, but must be viewed in the
context of the overall charge.’â€
[Citation.] If the charge as a
whole is ambiguous, the question is whether there is a “‘reasonable likelihood that the jury has
applied the challenged instruction in a way’ that violates the
Constitution.â€â€™ [Citation.]†(People
v. Huggins (2006) 38 Cal.4th 175, 192; see also People v. Wallace (2008) 44 Cal.4th 1032, 1075 [“‘[f]or ambiguous
instructions, the test is whether there is a reasonable likelihood that the
jury misunderstood and misapplied the instruction’â€]; People v. Rogers (2006) 39 Cal.4th 826, 873 [in reviewing ambiguous
instructions, “we inquire whether the jury was ‘reasonably likely’ to have
construed them in a manner that violates the defendant’s rightsâ€].) The arguments of counsel must also be
considered in “assessing the probable impact of the instruction on the
jury. [Citations.]†(People
v. Young (2005) 34 Cal.4th 1149, 1202.)
“[A]n aider and abettor’s liability
for criminal conduct 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 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.)
To convict a
defendant under the natural and probable consequences theory of liability, the
jury “must find that the defendant, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of a predicate or target offense;
(3) by act or advice aided, promoted, encouraged or instigated the commission
of the target crime[;] . . . (4) the defendant’s confederate committed an
offense other than the target crime; and (5) the offense committed by the
confederate was a natural and probable consequence of the target crime that the
defendant aided and abetted.†(
248, 262, fn. omitted.) The trial
court’s instructions to the jury must accurately “describe[e] each step in this
process [to] ensure proper application by the jury of the ‘natural and probable
consequences’ doctrine.†(
C.
Instructional Error In Misidentifying The Target
Crime Was Harmless
In this case, the Attorney General
concedes that the trial court erred in instructing the jury on the first
enumerated element in CALJIC No. 3.02 by substituting the non-target crimes of
murder and attempted murder in place of the target crime of shooting at an
occupied vehicle. The Attorney General
asserts, however, that any such error was harmless because it effectively
removed the natural and probable consequences doctrine from the jury’s
consideration and instead required to prosecution to prove that Carlos directly
aided and abetted the commission of a murder and attempted murder.
error was prejudicial because it permitted the jury to convict him of the
non-target crimes of murder and attempted murder under the natural and probably
consequences doctrine without making the requisite finding that he aided and
abetted the target crime of shooting at an occupied vehicle.
The California Supreme Court’s
decision in People v. Butler (2009)
46 Cal.4th 847 is instructive on this issue.
In the penalty phase of a criminal trial, the prosecution presented
evidence that the defendant had participated in the stabbing death of a fellow
jail inmate while awaiting trial on the charged crimes. In connection with the inmate’s murder, the
trial court instructed the jury on the natural and probable consequences
doctrine with CALJIC No. 3.02, but mistakenly transposed the target crime of
assault with a deadly weapon and the non-target crime of murder in the first
and third elements of the instruction. (
could not have operated to the defendant’s prejudice because “the instruction
as given properly informed the jury that in order to hold defendant liable for
murder, it would have to find that the murder was a natural and probable
consequence of an assault with a deadly weapon.†(Id.
at p. 870, fn. omitted.) As the Court
further explained, “[t]he transposition of murder and assault in the first and
third elements of the instruction had only a subtle effect, and could only have
made it more difficult for the prosecution to establish defendant’s culpability
for murder. Taken literally, the
instruction could be read to require a finding that he intended to aid and abet
a murder, rather than an assault.†(
We reach a similar conclusion in
this case. Although the version of
CALJIC No. 3.02 given by the trial court incorrectly identified the target
crime in the first enumerated element, the remainder of the instruction accurately
reflected the law on the natural and probable consequences doctrine. The instruction properly informed the jury
that “[o]ne who aids and abets another in the commission of a crime is not only
guilty of that crime, but is also guilty of any other crime committed by a
principal which is a natural and probable consequence of the crime originally
aided and abetted.†It also accurately
stated that to find Carlos “guilty of the crimes of murder or attempted murderâ€
under this theory, the jury had to be satisfied beyond a reasonable doubt that
“a co-principal . . . committed the crimes of murder and attempted murder†and
that “[t]he crimes of murder and attempted murder were natural and probable
consequences of the commission of the crime of shooting at an occupied
vehicle.†When the instruction is
considered in the context of the overall charge, there is no reasonable
likelihood that the jury misunderstood and misapplied the instruction in a
manner that violated Carlos’s rights.
Moreover, by
misidentifying the target crime as murder and attempted murder in the first
enumerated element, the instruction could be read as requiring the jury to find
beyond a reasonable doubt that Carlos directly aided and abetted the commission
of a murder and attempted murder rather than the lesser offense of shooting at
an occupied vehicle. This theory of
aiding and abetting liability was also consistent with the evidence and
argument presented at trial. Neither the
prosecution nor the defense relied on the natural and probable consequences
doctrine in its argument to the jury.
Rather, the prosecution argued that Carlos intended to aid and abet the
commission of a murder by pointing a gun at the victims’ vehicle while Meza
approached it from the side and then firing his own weapon directly at the
vehicle when it tried to flee. Likewise,
Carlos’s defense at trial was not that he merely intended to aid and abet a
drive-by shooting or that he did not reasonably foresee that a murder or
attempted murder would result. Instead,
his defense was that he was visiting a friend’s house at the time of the
shooting and was mistakenly identified by the victims. Given that the parties made no reference to
the natural and probable consequences doctrine in their arguments, it is highly
unlikely the jury relied on that theory in convicting Carlos. Furthermore, the jury necessarily rejected
Carlos’s defense that he was not present at the July 16, 2009 shooting, as it
found him guilty of the separately charged offense of shooting at an occupied
vehicle and also found true the enhancement allegation that he personally and
intentionally discharged a firearm in connection with that shooting. Accordingly, based on the instructions as a
whole, the argument of counsel, and the evidence presented at trial, any error
committed by the trial court in instructing the jury with CALJIC No. 3.02 was
harmless.
III.
Cumulative Error
Carlos last contends that the
cumulative effect of the claimed errors deprived him of due process of law and
a fair trial. Whether considered
individually or for their cumulative effect, none of the errors alleged by
Carlos affected the process or accrued to his detriment. (People
v. Sanders (1995) 11 Cal.4th 475, 565.)
As our Supreme Court has observed, a defendant is “entitled to a fair
trial but not a perfect one.
[Citations.]†(
926, 1009.) In this case, Carlos
received a fair trial and has failed to show any cumulative error requiring
reversal.
DISPOSITION
The
judgment is affirmed.
ZELON,
J.
We concur:
PERLUSS, P.
J.
WOODS,
J.
name="_ftn1" title="">[1]
to the Penal Code.
name="_ftn2" title="">[2]
trial, Martinez testified that the vehicle that Carlos and Meza shot at was a
brown SUV. However, shortly after the
shooting, Martinez told the police that the vehicle was a white pickup
truck.
