P. v.
Filed 10/3/13 P. v. Martinez CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. SEAN MATTHEW MARTINEZ, Defendant and Appellant. | B242591 (Los Angeles County Super. Ct. No. GA076492) |
APPEAL from
a judgment of the Superior Court
of
County, Teri Schwartz, Judge.
Affirmed.
J. Kahn,
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, Assistant Attorney General, Eric E. Reynolds and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
This appeal arises out of a shooting
on April 11, 2009, in which two young men
were killed and four others were injured.
The shooter, Vincent Casio, who was the subject of a separate appeal,
was convicted of two counts of murder
(Penal Code § 187, subd. (a)),
187, subd. (a)), and possession of a firearm by a felon (§ 12021, subd.
(a)(1)). In the same trial, defendant
and appellant Sean Matthew Martinez was convicted as an aider and abettor of
two counts of second degree murder (§ 187, subd. (a)) and four counts of
premeditated attempted murder.
offenses were committed for the benefit of a
(b)) and a principal personally and intentionally discharged a firearm (§
12022.53, subds. (b)-(e)). Defendant was
sentenced to 40 years to life in state prison.
A defendant may be liable under an
aiding and abetting theory in two ways:
he may be found to have possessed the necessary mental state to be
guilty of the crime the perpetrator committed, or guilty of both the crime the
perpetrator intended to commit (target offense) and any crime that is a natural
and probable consequence of the intended crime (non-target offense). (People
v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) Throughout the trial, the prosecution
proceeded on the theory that defendant possessed the necessary mental state to
be guilty of murder and attempted murder as an aider and abettor, choosing not
to rely on a natural and probable consequences theory. The jury was instructed accordingly. During deliberations, however, the jury sent
questions to the trial court concerning whether it would be permissible to
convict defendant if the crime defendant intended to aid and abet was not
murder or attempted murder, but instead an uncharged crime. After discussion with counsel outside the
presence of the jury, the trial court elected to instruct under Judicial Council
of California Criminal Jury Instructions (2010) CALCRIM No. 403 (Natural and
Probable Consequences (Only Non-Target Offense Charged)), identifying the
target crime as assault with a deadly weapon or by means likely to produce
great bodily injury. The court permitted
both sides to address the new instruction to the jury.
Defendant contends: 1)
there is insufficient evidence to support the convictions on a direct
aiding and abetting theory; 2) the
natural and probable consequences instruction was given in error because it was
not supported by the evidence; 3)
defendant was prejudiced by the natural and probable consequences
instruction because he had inadequate notice that the instruction would be
given and was denied the right to present a complete defense; 4) the jury was coerced into rendering guilty
verdicts because it was instructed on natural and probable consequences in the
midst of deliberations; and 5) the jury’s
findings of premeditation on the attempted murder convictions were not pled and
must be stricken. Defendant alternately
requests that, if the judgment is affirmed, the trial court be ordered to amend
the awards of direct victim restitution to reflect the imposition of joint and
several liability.
We affirm the judgment in its entirety.
FACTS
The Shootings
On April
11, 2009, Christina Sanchez rented a room at the Knights Inn in Rosemead for her brother Anthony
Gonzalez’s sixteenth birthday party. The
guests at the party included Jessica Boyle, Betty Fontenot, Francine Ortega,
Richard Herrera, Toumaria Harris, Armando Davila, Raudel Ceballos, Gustavo
Delatorre, and Angel Guerrero. When
Sanchez, Gonzalez, and Davila arrived at the motel, approximately 15 people
were already in the room. Less than an
hour later, Sanchez let Richard Logan, whom she had gone to high school with,
into the room. Defendant and Casio
arrived together a little later. Sanchez
did not want to let defendant and Casio in because she did not know them or
like the way they looked, but she relented because Logan knew them. Several of the guests described defendant and
Casio as looking like gangbangers, which made them uncomfortable.
Gonzalez told defendant and Casio
that if they had any problems at the party, they should talk to him and he
would take care of things. At some
point, Casio called Harris a highly offensive racial epithet. Gonzalez reminded defendant and Casio that he
had asked them to come to him if they had a problem and not to start any
trouble. One of them apologized.
Defendant and Casio remained at the
party for about an hour to an hour and a half and left. They returned about an hour later. Casio had a bandana tied over his mouth. Casio pointed a gun at the balcony, where
Gonzalez, Delatorre, Ceballos, Harris, and Davila were standing and told
Guerrero, who was on the bed, to get on the balcony with them. Casio walked behind Guerrero, telling him to
get outside. Logan ran toward the balcony and
jumped over the edge. The balcony was
high. Delatorre tried to stop Casio from
corralling people onto the balcony, but Casio shot him in the face. More than ten shots were fired. Some of the guests testified that defendant
was by the door during the shooting, and they heard him telling Casio to hurry
out of the room when the shooting ceased.
Herrera was in the bathroom when the shooting began. He opened the door, but immediately went back
inside, along with Sanchez, after either Casio or defendant yelled at him to go
back into the bathroom. Guerrero and
Delatorre were killed in the gunfire.
Gonzalez, Harris, Davila, and Ceballos were injured.
A motel patron heard the gunshots
and went outside to see what was going on.
He saw people running, one of whom was a male with a bandana covering
his face. One of the people running
said, “This is a hood thing. Get back in
your room.â€
Statements by
Jaki Arteaga
On April
21, 2009, Los Angeles County Sheriff’s Detective Richard Ramirez and Sergeant
Edward Godfrey conducted an interview with Jaki Arteaga, which the prosecution
introduced at trial. Arteaga was
originally a codefendant in the case, but he pled guilty as an accessory after
the fact before the preliminary hearing.
Arteaga stated that he picked up defendant on the night of the shooting
and the two drove around for a while before picking up Casio, who was one of
defendant’s “homies.†Arteaga dropped
the two men off at a motel. Before
getting out of Arteaga’s truck, defendant told Arteaga that he was going to
“squabble with some fools.†Later,
defendant called Arteaga again and asked him to return to the motel to pick
them up. Defendant told Arteaga that
“the homies are here with some puss from Lomas†and instructed him to leave the
truck running. While he was waiting in
the parking lot, Arteaga heard gunshots and drove away. He stopped when he saw defendant and Casio,
right behind defendant, to let them into the truck. As they were driving away from the scene,
either Casio or defendant threw a gun clip out of the truck. Arteaga dropped them off together and went
home. At trial, Arteaga testified after
the judge told him he would be held in contempt if he refused. He denied many of his statements at the
interview.
Expert
Testimony
San Gabriel Police Detective Fabian
Valdez, the prosecution’s gang expert, testified regarding the Sangra
gang. The motel in which the shooting
took place was within Sangra territory.
Detective Valdez said that members of Sangra
“ha[d] been arrested for a multitude of crimes,†including assault with a
deadly weapon, auto theft, homicide, and robbery and witness intimidation. Lomas was its primary rival. Sangra members did not “get along†with
Blacks.
Both Casio and defendant were
documented as gang members, although police had fewer prior contacts with
defendant than with Casio. Their names appeared
in Sangra “roll callsâ€â€”lists of Sangra members written on building walls. Logan was a prolific “tagger†for
Sangra and associated with the gang with hopes of becoming a member. Logan’s father was a Sangra
member. Detective Valdez opined Casio was a member
of Sangra based on Casio’s tattoos, his dress, demeanor, and his admission that
he was a member of Sangra. Valdez had known Casio for
approximately ten years and knew his moniker was “Boy,†and that he was the
“shot caller†of the Sickos clique.
Given a hypothetical situation based
on the facts presented at trial, Detective Valdez opined the shootings were
gang-related because Hispanic gangs do not tolerate Blacks and there were gang
members or associates at the party whom the host chastised for making a
derogatory remark about a Black guest.
The shooting was intended to avenge the disrespect because tolerating
disrespect was a sign of weakness.
Respect was “everything†in gang culture, and gang members had to be
willing to die and kill for it. The
gang’s status as a whole was at stake, and if the disrespect was not avenged,
other gangs would attack members due to the perceived weakness. A gang also maintained its reputation by
terrorizing the community, so that people would be afraid to report crimes
committed by the gang. Gang members were
like brothers, who would back each other up in a fight, and go so far as to
kill to protect each other.
Defendant’s
Testimony
Defendant testified on his own
behalf. He admitted to being a member of
Sangra since the age of 15 and had known Casio for about a year prior to the
shooting. On the night of the shooting,
defendant was with Arteaga. They were
driving around in Arteaga’s truck deciding what to do, when Casio called and
said he was stranded. Since gang members
do not leave fellow gang members in enemy gang territory, Arteaga drove and
picked Casio up. Casio got a call from Logan, AKA “Little Tricky,†who
told him about the party at the motel in Rosemead. They decided to go because Logan wanted to join the Sangra
gang, and defendant wanted to test his loyalty by fighting with him. It was important to fight for the gang and to
know that members will back each other up in a fight. When they pulled into the motel, defendant
asked Arteaga to stay. Instead, he
agreed to pick defendant up later.
Logan let defendant into the
room. Once inside, defendant
“challenged†Logan by asking questions intended to get him to
fight. Logan just responded “Okay,â€
which was not appropriate. Gang members
were expected to show readiness and interest in fighting to prove their
loyalty.
Defendant and Logan went to the
balcony, while Casio went to the bathroom to use cocaine given to him by
defendant. Defendant and Delatorre, who
was also on the balcony, discussed where they were from. Defendant said he was from Sangra, and
Delatorre said he belonged to a motorcycle gang. Defendant did not feel any tension between
them. Casio came over and told defendant
he wanted to “go getâ€â€”i.e., steal—a car.
Defendant, Casio, and Logan then went to the sink by the bathroom and
used cocaine. While they were at the
sink, Harris came out of the bathroom and leaned over Casio and spit in the
sink; Logan told Harris to “watch where you spit around my
homeboy.†Defendant thought there was
going to be a fight. Defendant did not
want to fight and was angry that Logan confronted Harris because
if Logan started a fight, defendant and Casio would have to
back him up. Logan then asked Harris if he had
a problem, and they stared at each other.
Harris left, bumping Casio with his shoulder. Casio said he was going to get the car, and
defendant wanted to leave because he did not trust Logan.
Defendant left the party with Casio
and two other males. Casio said there
was not enough room and told defendant to stay at the motel. He said he would come back for him. Defendant went back to the party. Defendant talked to Logan for about 15 minutes and
then called Arteaga to pick him up.
Casio appeared in the doorway. Defendant asked Casio if he had a car, and he
said no. Defendant told him Arteaga was
picking him up. They were walking toward
the door when Casio told defendant to “be ready†and pointed to a gun. Casio often carried a gun because people
wanted to kill him. Defendant was armed
with a knife because gang members often engage in violence and may need to
defend themselves from rival gang members.
Although he came to the motel because he “intended to engage in gang
behavior,†and knew Casio “wanted to do something,†when Casio said “be ready,â€
defendant thought he meant he should be ready to leave.
Casio put a bandana around his
face. Defendant did not know what Casio
was planning to do, but when he saw Casio reach into his waistband, he thought
Casio was going to rob someone.
Defendant was confused and stood by the door to see what would
happen. He heard shots and panicked, so
he reached for his pocket knife. He held
the knife out and told Sanchez to “get the fuck in[to the bathroom].†He was afraid she would be shot. Sanchez ran in and the door closed behind
her. Defendant saw Casio running toward
the bathroom so he said, “Let’s get the fuck out of here.†They both ran. Defendant saw Arteaga speeding out of the
parking lot, so he waved him down, and he and Casio jumped into the truck. Casio told defendant, “You’re coming with
me.†Defendant was afraid Casio would
shoot him if he got out of the truck.
Casio told Arteaga to drop them off
at his stepfather’s house. Casio told
his stepfather that he lined up people on a balcony and killed five of
them. Defendant was afraid because Casio
was shooting up cocaine and had track marks on his arm. He thought Casio might kill him. Another gang member showed up and Casio
bragged about the shooting. Casio’s
stepfather helped them dispose of their clothes and cell phones. Defendant gave Casio $100 to get him a new
cell phone. At some point, defendant
checked the magazine of Casio’s gun and saw ammunition. Defendant stayed until Casio locked himself
in his room. He walked to the bus stop
and called his brother for a ride.
Defendant did not call or talk to
the police after his arrest because gang members who snitched got killed, but
he told officers everything after he was arrested.
I. Denial
of Motion to Dismiss/Direct Aiding and Abetting
After
presenting the testimony of the first defense witness,
section 1118.1 on the ground there was insufficient evidence to support
defendant’s convictions under a direct theory of aiding and abetting.
of the motion. There was no error.
“In reviewing a challenge to the
sufficiency of the evidence under the due process clause of the Fourteenth
Amendment to the United States Constitution and/or the due process clause of
article I, section 15 of the California Constitution, we review the entire
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.â€
(People v. Cole (2004) 33
Cal.4th 1158, 1212 (Cole).) “‘“[I]f the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact
finder.â€â€™ [Citation.] ‘The standard of review is the same in cases
in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of
which suggests guilt and the other innocence [citations], it is the jury, not
the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt.â€â€™ [Citation.]†(People
v. Snow (2003) 30 Cal.4th 43, 66.)
“In ruling on a motion for judgment
of acquittal pursuant to section 1118.1, a trial court applies the same
standard an appellate court applies in reviewing the sufficiency of the
evidence to support a conviction, that is, ‘“whether from the evidence,
including all reasonable inferences to be drawn therefrom, there is any
substantial evidence of the existence of each element of the offense
charged.†[Citations.]’ [Citation.]
‘Where the section 1118.1 motion is made at the close of the
prosecution’s case-in-chief, the sufficiency of the evidence is tested as it
stood at that point.’ [Citation.]†(Cole,
supra, 33 Cal.4th at pp. 1212-1213.)
Under a direct theory of aiding and
abetting, the defendant must have known and shared the perpetrator’s murderous
intent to be found liable. (See
perpetrator’s specific intent when “‘“the accomplice ‘knows the full extent of
the perpetrator’s criminal purpose and gives aid or encouragement with the
intent or purpose of facilitating [the killing].’â€â€™ [Citation.]â€
(People v. Samaniego (2009)
172 Cal.App.4th 1148, 1164, quoting McCoy,
supra, at pp. 1117-1118.) Although mere presence at a crime scene does
not suffice to establish aiding and abetting, acts tending to demonstrate
aiding and abetting include “presence at the scene . . . , companionship, and
conduct before and after the crime, including flight.†(People
v. Haynes (1998) 61 Cal.App.4th 1282, 1294.) Those factors, among others, weigh heavily
against defendant in this case.
The facts support the findings that
defendant knew Casio planned to kill his victims, shared his intent, and aided
and encouraged him. Defendant and Casio
belonged to the same gang. They arrived
at the party together, stayed in one another’s company during the party, and
left together. Defendant was present
when Gonzalez confronted Casio and chastised him publicly about his racial slur
against Harris. An expert testified that
within gang culture, Gonzalez’s action would be considered disrespectful. Disrespect against one gang member requires
retribution, and fellow gang members are expected to back up a disrespected
member in an altercation. Defendant was
with Casio at the scene during the shooting, and two witnesses testified he was
positioned by the door. Casio put a
bandana over his face, walked straight into the room, corralled the victims
onto the balcony, and immediately opened fire without provocation. The jury could reasonably infer that both men
knew what was going to happen as they entered the room, and that defendant was
blocking the exit to deter anyone from trying to escape while Casio carried out
the shooting. Defendant and Casio fled
the motel room together, and as they left, one of them told an onlooker, “This
is a hood thing. Get back in your room,â€
indicating that the two of them were working together in a gang-related
altercation.
Evidence was presented that defendant arranged
transportation for himself and Casio to and from the motel. Arteaga told the police that defendant called
to ask Arteaga to drop them off at the motel and later called for Arteaga to
pick them up.
name="_ftnref5" title="">[5] Defendant told Arteaga he was going to
“squabble with some foolsâ€; “homies are here with
some puss from Lomas,†a derogatory reference to a rival gang; and to
leave the truck running when he got to the motel, from which it could be
inferred that defendant and Casio planned to leave the area rapidly, and likely
for a nefarious purpose. The timing of
the pick up was also suspect. The
shooting took place just after Arteaga arrived at the motel. Moments later, defendant jumped a fence at
the motel and ran to Arteaga’s moving truck.
Defendant waved Casio into the truck as well, and one of them disposed
of a gun magazine while Arteaga was driving.
Arteaga dropped defendant and Casio off at the same location.
The
prosecution presented solid, credible evidence of defendant’s guilt as an aider
and abettor. The motion to dismiss was
properly denied.
II. Contentions
Relating to the Natural and Probable Consequences Theory
Prior
to defendant’s testimony, the trial court and counsel had a conference on jury
instructions. The prosecutor considered
presenting the natural and probable consequences doctrine using the target
offense of assault with force likely to produce great bodily injury based on
defendant’s statement to Arteaga that he intended to “squabble with some
fools.†After reviewing CALCRIM No. 403,
however, he decided against it, stating:
“I think it’s just a really complicated instruction. And if I don’t have to use it, I won’t.†The court agreed not to give CALCRIM No. 403
based on the prosecutor’s tactical decision.
After the conclusion of defendant’s
testimony in another discussion outside the presence of the jury, the
prosecutor said: “One thought that just
hit me with regard to instructions, there were two concepts that arose
today. One was the idea of natural and
probable consequences, but I’m not going to request that. I don’t think it quite got to that state.â€
The trial court instructed the jury
only on direct aiding and abetting.
Counsel made closing arguments, and the jury commenced deliberations on
December 13, 2011. Outside the presence
of the jury on December 15, 2011, the court advised the parties that the
previous day, the jury asked the following question: “‘The jury instruction refers to “the
crime.†Are we limited in considering
“the crime†as only the crimes listed in charges 1 through 8. Please elaborate.’†Because Casio was the only defendant charged
in count 9, the court asked the jury for a clarification. The jury responded: “‘Clarification on applying the jury
instruction 401 aiding and abetting. The
jury instruction refers to ‘the crime.’
Are we limited to considering the charges 1 through 8. There was testimony from [defendant]
indicating a possible robbery. Can we
consider this speculated robbery scenario that escalated to the resulting
charges as the crime even though it is not among the listed charges?’†The court observed the jury’s clarifying
question related to the natural and probable consequences theory of aiding and
abetting, which the prosecutor opted not to argue for tactical reasons, and
which the jury had not been instructed upon.
The parties discussed the issue at length, and agreed not to refer to the
natural and probable consequences doctrine in response to the jury’s
question. The jury was provided with the
response: “‘While all evidence may be
considered by you to find the defendant guilty of the crimes charged in counts
1 through 8, you must find that the defendant intended to and did assist in the
commission of those crimes.’†The jury
recommenced deliberations.
On December 16, 2011, the jury
requested, and was provided, read back of Ceballos’s testimony covering the
period shortly before the crime through shortly after the crime. On December 20, 2011, the jury was provided
read back of Fontenot’s testimony from shortly before the crime through shortly
after the crime. Thereafter, the jury
reached verdicts on all counts related to Casio and on counts 7 and 8 related
to defendant. Deliberations continued on
January 3, 2012, as to counts 1-6, related to defendant. That day, the jury heard read back of
Herrera’s testimony covering the period from just before the crime to shortly
after the crime.
Near the close of deliberations on
January 4, 2012, the jury submitted the following note: “‘Can we have a replacement verdict form for
count 8. And we feel deadlocked as to counts
1 through 6.’†On January 5, 2012, the
trial court questioned the jury foreperson (Juror No. 8) about the
inquiry. Juror No. 8 stated the word
“deadlocked†in the note meant that all 12 jurors could not agree to a
decision, which was not a decision of guilty versus not guilty. The court asked: “Is there another question that needs to be
presented to the court?†Juror No. 8
replied that further clarification on the court’s prior response to the jury’s
question regarding aiding and abetting could help with the deadlock. The other 11 jurors agreed with this
assessment. Juror No. 8 stated that the
court’s prior response “brought more questions than answers.†At the court’s request, the jury provided
clarification of its request: “Jury
instruction 401 Aiding and Abetting. We
are having trouble with the language of the instruction. The instruction requires we find all four
elements to be met to determine the defendant aided and abetted. We are having trouble applying the language
in elements #2 and #4, specifically the language that the defendant knew ‘the
crimes’ in counts 1-6 were going to be committed. If the defendant thought, ‘a different
crime,’ other than the charges in counts 1-6 was going to be committed does
that satisfy the elements of this instruction?
If we cannot agree on Aiding and Abetting are we to move forward with
voting on all counts?â€
Outside the presence of the jury,
the trial court assessed the situation with counsel, stating “this is the same
situation we were in before.†The
prosecutor requested that the trial court give the natural and probable
consequences instruction specifying robbery and assault with a firearm as the
target offenses. Defense counsel
proposed instead that the court give the jury a modified version of CALCRIM No.
401, arguing that giving the natural and probable consequences instruction
violated defendant’s rights to a fair trial and due process of law. The court observed that the prosecutor had
twice stated he was not requesting the natural and probable consequences
instruction before the case went to the jury.
The court stated it should have given the instruction, despite the
prosecutor’s position, because substantial evidence supported it with a target
crime of assault. The court recounted
the following facts, which supported the theory: defendant and Casio were gang members and
companions throughout the evening of the shooting, defendant intended to fight
Logan to test his gang loyalty, Casio carried a gun and defendant carried a
knife, a shooting occurred, and defendant testified that he stood by the door
holding the knife. The court denied the
prosecutor’s request to instruct the jury on robbery as a target offense but
agreed to instruct on assault as a target offense.
In open court, the trial court
reread the jury’s question and informed the jury: “In response to your question, I am going to
attempt to provide further instructions that may answer that question depending
upon what you find to be the facts. This
was not given to you originally, nor was it presented to you in argument. However, it is an instruction that I need to
give you in light of the question. And
just like all the other instructions, you were told that some apply and some
may not depending on what you find to be the facts.†The court then instructed on the natural and
probable consequences doctrine with assault with a deadly weapon or by means
likely to produce great bodily injury (§ 245, subd. (a)) as the target offense
of the intended crimes of murder or attempted murder.
The prosecutor and defense gave
supplemental closing arguments based on the additional instructions. The prosecutor argued that defendant was
guilty under both aiding and abetting theories.
Defense counsel argued the instructions on the natural and probable
consequences did not apply to the facts of the case.
Deliberations recommenced and
continued on January 6 and 9, 2012. The
jury reached guilty verdicts on the murder and attempted murder counts on
January 10, 2012.
Sufficiency of the Evidence Under the Natural and Probable
Consequences
Doctrine
Defendant contends the trial court
erred in instructing the jury on the natural and probable consequences theory,
because the theory was not supported by the evidence. We apply the substantial evidence standard of
review to this contention.
“‘“A person who knowingly aids and
abets criminal conduct is guilty of not only the intended crime [target
offense] but also of any other crime the perpetrator actually commits
[nontarget offense] that is a natural and probable consequence of the intended
crime. The latter question is not
whether the aider and abettor actually
foresaw the additional crime, but whether, judged objectively, it was
[Citation.] Liability under the
natural and probable consequences doctrine “is measured by whether a reasonable
person in the defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the act aided and
abetted.†[Citation.]’ [Citations.]â€
(People v. Favor (2012) 54
Cal.4th 868, 874 (Favor).) To be reasonably foreseeable, the
consequences of the perpetrator’s act “‘“need not have been a strong
probability; a possible consequence which might reasonably have been
contemplated is enough. . . .â€
[Citation.]’ [Citation.]†(People
v. Medina (2009) 46 Cal.4th 913, 920, quoting People v. Nguyen (1993) 21 Cal.App.4th 518, 535.) “A reasonably foreseeable consequence is a
factual issue to be resolved by the jury who evaluates all the factual
circumstances of the individual case.
[Citation.]†(
Courts have repeatedly concluded
that murder and attempted murder are a natural and probable consequence of
assault by gang members. (See
1, 10-11 [fatal shooting during gang-related fistfight in which the defendant
openly carried a gun was natural and probable consequence of fistfight];
1050, 1055-1056 [shooting of rival gang member during retreat from fight was
natural and probable consequence of gang fight in which defendant wielded a
chain]; People v. Olguin (1994) 31
Cal.App.4th 1355, 1376 [defendant’s punching of victim during gang
confrontation foreseeably led to fatal shooting of victim by fellow gang
member]; People v. Godinez (1992) 2
Cal.App.4th 492, 499-500 [fatal stabbing of rival gang member either during or
after fistfight was natural and probable consequence of fistfight];
221, 226 [defendant’s aiding and encouragement of battery on victim foreseeably
led to shooting of victim by fellow gang members], superceded by statute on
another point as stated in People v.
Gibbs (1983) 145 Cal.App.3d 794, 797.)
Defendant attempts to circumvent a
similar conclusion in his case by arguing that no assault occurred. “As this court explained more than a century
ago, ‘Holding up a fist in a menacing manner, drawing a sword, or bayonet,
presenting a gun at a person who is within its range, have been held to
constitute an assault. So,
such circumstances as denote an intention existing at the time, coupled with a
present ability of using actual violence
against the person of another, will be considered an assault.’ [Citations.]â€
(People v. Colantuono (1994) 7
Cal.4th 206, 219.) When Casio brandished
his gun and forced his victims onto the balcony, the assault was complete. It was reasonably foreseeable that Casio, as
a gang member intending to avenge disrespect through assault with a firearm,
could kill or attempt to kill his victims.
Defendant also argues any intended
assault was unconnected to the murders and attempted murders, such that the
crimes could not have been a natural and probable consequence of the intended
assault. He focuses on the possible
altercation with Logan as the target offense, arguing that any animosity was
remote, and that Logan was not a target of the shooting. To the contrary, defendant testified that his
issues with Logan arose on the same night and within a few hours of the
shooting. Defendant admitted that he
planned to test Logan by fighting him, Logan responded inappropriately to his
challenge, Logan irritated defendant by aggravating the incident with Harris,
and ultimately he did not trust Logan—which was absolutely essential in gang
culture. The evidence also tends to
prove Logan was a target: Logan was on
the balcony inside the area of Casio’s intended range just before the shooting
started, and he took drastic action to avoid being shot. Despite the fact that he was associated with
Sangra, Logan did not hesitate to jump off the high balcony to the shock of
others standing with him, which tends to show that he understood he was a
target as soon as Casio entered the room with a gun.
Moreover, there was evidence of
incidents with other guests at the party that night that would have provoked an
assault. Gonzalez chastised Casio for
his racial epithet in front of defendant.
Harris spat over Casio’s shoulder into the sink and then bumped Casio in
the shoulder as he exited the bathroom when both Logan and defendant were
present. These public displays of
disrespect would necessitate defendant backing up Casio if Casio chose to
fight, which was likely within gang culture.
The jury could reasonably infer the incidents with Gonzalez and Harris,
combined with the racial prejudice that Sangra gang members have against
Blacks, were reason enough for Casio and defendant to return to the motel room
and “squabble with some fools†who had disrespected them.
Additionally, defendant knew Casio had
a gun, and was himself carrying a knife.
Defendant admitted he was standing by the door—the only route of escape
from the room other than the balcony, which was high off the ground. He brandished a 3 1/2-inch blade and ordered
Sanchez to “get the fuck back in there†when she attempted to leave the
bathroom. Although defendant’s
explanations for these actions may have been less than sinister, the jury was
free to accept his testimony regarding the actions and reject his
explanations. (Cf. Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68 [“‘the
jury properly may reject part of the testimony of a witness, though not
directly contradicted, and combine the accepted portions with bits of testimony
or inferences from the testimony of other witnesses thus weaving a cloth of
truth out of selected available material.
[Citations.]’â€].)
After the shooting, defendant helped
Casio escape. He dove into Arteaga’s
vehicle and encouraged Casio to jump into the moving truck as well, and they
fled the scene together. Together they
disposed of a gun magazine and went to Casio’s stepfather’s house, where they
destroyed their cell phones and disposed of their clothes. Defendant checked Casio’s gun for
ammunition. Although he claimed to be
fearful, defendant gave Casio $100 because he wanted Casio to buy him a new
phone. The jury could reasonably find
that had he wished to end their association, it is unlikely defendant would
have remained with Casio after they successfully fled the scene.
In light of the substantial evidence
presented, we conclude the trial court did not err in giving the natural and
probable consequences instruction.
C. Notice of
the Prosecution’s Natural and Probable Consequences Theory
Defendant contends that by giving
the natural and probable consequences instruction during deliberations, the
trial court deprived him of fair notice of the charges against him, as well as
the right to present a complete defense.
Because the issues involve mixed questions of fact and law, our review
is de novo. (
65, 70 (Quiroz).) We conclude that notice was adequate,
and that defendant had the opportunity to present a full defense.
At the preliminary hearing, which
is considered to be “‘the touchstone of due process notice to a defendant’†(People
v. Jones (1990) 51 Cal.3d 294, 312), defendant was put on notice that he
could be charged on an aiding and abetting theory. Evidence was presented that Casio told
defendant to “get ready,†defendant knew Casio had a gun, defendant watched
Casio put a bandana over his mouth, and defendant decided to remain in the room
by the door to the hallway. This
evidence supports the theory defendant knew that either an assault or a murder
would be committed, shared Casio’s intention, and aided and abetted the crimes
by guarding the door. Additionally,
defendant was charged with two counts of murder and two counts of attempted
murder, and in California, “an instrument charging a defendant as a principal
is deemed to charge him as an aider and abettor as well. (§ 971.)
This ‘notice as a principal is sufficient to support a conviction as an
aider and abettor . . . “. . . without the accusatory pleading reciting the
aiding and abetting theory. . . .â€â€™
[Citations.]†(
doctrine describes one type of aiding and abetting (McCoy, supra, 25 Cal.4th
at p. 1117), defendant had adequate notice of the
theory. In addition to the other
evidence proffered at trial, which we discussed above, defendant’s own
testimony supplied much of the factual basis for a natural and probable
consequences theory.
Defendant also had the opportunity
to present a complete defense. As the
Attorney General concedes, the prosecution chose not to rely on the natural and
probable consequences doctrine for tactical reasons and represented to
defendant throughout the trial that it would not do so. The prosecution did not “ambush†or “misleadâ€
defendant, however. It was only after
the jury twice questioned the trial court concerning the law that the
instruction—which was a correct formulation of the law as applied to the
facts—was given.
The trial court has wide discretion
concerning the timing of its instructions to the jury. (People
v. Ardoin (2011) 196 Cal.App.4th 102, 127 (Ardoin).) Section 1093, subdivision (f),
provides: “At the beginning of the trial
or from time to time during the trial, and without any request from either
party, the trial judge may give the jury such instructions on the law
applicable to the case as the judge may deem necessary for their guidance on
hearing the case.†Under section 1094,
further instruction may be given during deliberations “for good reasons, and in
the sound discretion of the Court.†(See
Ardoin, supra, at pp. 126-128.)
Here, the trial court did not abuse
its discretion by giving a supplemental instruction on the natural and probable
consequences theory. When questioned by
the jury, the court was statutorily obligated “‘to provide the jury with
information the jury desire[d] on points of law.’ [Citations.]â€
(Ardoin, supra, 196 Cal.App.4th at pp. 127-128.) It was also required to “‘attempt “to clear
up any instructional confusion expressed by the jury.†[Citation.]’
[Citation.]†(
case to instruct the jury on the law relevant to the issues raised by the
evidence.†(Ibid.) Finally, “‘[t]he
court [was] not precluded from giving
any instruction for which there [was] evidentiary support. The fact that a party did not pursue a
particular theory does not preclude the trial judge from giving an instruction
on that theory where it deems such an instruction to be appropriate.’ [Citation.]â€
Moreover, when the trial court
instructed the jury it emphasized that, as with other instructions, the natural
and probable consequences doctrine may or may not apply, and the jury was free
to disregard the instruction if it was not relevant to the jury’s findings. Further argument was permitted in light of
the instruction, and defense counsel took advantage of the opportunity to argue
the instruction did not apply to defendant’s case. Defense counsel did not request to reopen the
case to introduce additional evidence or request a continuance to prepare for
his supplemental closing argument. (See
1131-1132 [“defendant waived any claim of insufficient notice by not moving to
reopen when he learned that the court would instruct the jury on felony murderâ€];
People v. Memro (1995) 11 Cal.4th
786, 869 [defendant forfeited claim prosecution’s felony-murder theory
surprised him because he failed to move to reopen evidence].) Under these circumstances, defendant was not
denied the opportunity to present a complete defense.
D. Timing of
the Natural and Probable Consequences Instruction
Defendant next contends the timing
of the natural and probable consequences instruction coerced the jury into
returning guilty verdicts. As we have
already stated, the trial court had wide discretion to give the natural and
probable consequences instruction during deliberations (Ardoin,
supra, 196 Cal.App.4th at p. 127)
and did not abuse its discretion in doing so.
Nor was the jury coerced by the court’s response to its inquiries.
“Whether statements of a trial judge
amount to coercion of a verdict is peculiarly dependent upon the facts of each
case.†(People v. Burton (1961) 55 Cal.2d 328, 356, abrogated on another
point by People v. Brown (1994) 8
Cal.4th 746, 748-750, 762-763.) “The
basic question . . . is whether the remarks of the court, viewed in the
totality of applicable circumstances, operate to displace the independent
judgment of the jury in favor of considerations of compromise and
expediency.†(People v. Carter (1968) 68 Cal.2d 810, 817, abrogated on other
grounds by People v. Gainer (1977) 19
Cal.3d 835, 851-852.)
Looking at the totality of the
circumstances, we conclude the jury was not coerced in this case. People
v. Stouter (1904) 142 Cal. 146 (Stouter)
and People v. Jennings (1972) 22
Cal.App.3d 945 (Jennings), on which
defendant relies, differ from this case.
In both cases, a new offense was introduced in the instructions during
deliberations. (Stouter, supra, at pp.
149-151 [jury was instructed on attempted lewd act upon a child during
deliberations, although he was charged and tried for lewd act upon a child];
although defendant was charged and tried for assault with intent to commit
murder].) Here, the jury was further
instructed on aiding and abetting the charged offenses under the natural and
probable consequences doctrine. The
trial court specifically verified that the jury was not “deadlocked†on the
question of innocence or guilt, but needed clarification of the meaning of the
instructions given. Although the jury
inquired as to whether defendant could be convicted on the theory that he aided
and abetted a robbery, the court designated only felony assault as the target
offense, because it did not deem robbery to be a target offense supported by
substantial evidence. The verdicts were
reached not because the jury was pressured, but because it pursued its duty to
assess the facts in light of the relevant law, stated fully and accurately, and
the court fulfilled its obligation to provide complete instruction on the
applicable law.
III. Premeditated
Attempted Murder Findings
Where it has been pleaded and proven
an attempted murder was willful, deliberate, and premeditated, section 664,
subdivision (a) provides for an increase in the maximum determinate term to a
life sentence. (People v. Arias (2010) 182 Cal.App.4th 1009, 1011, fn. 2 (
The statute specifically requires that “[t]he additional term provided
in this section for attempted willful, deliberate, and premeditated murder
shall not be imposed unless the fact that the attempted murder was willful,
deliberate, and premeditated is charged in the accusatory pleading and admitted
or found to be true by the trier of fact.â€
(§ 664, subd. (a).) Additional to
the pleading requirements contained in section 664, the federal Constitution
requires that “the accused . . . be informed of the nature and cause of the
accusation†(U.S. Const., 6th Amend.), such that he/she is afforded a
reasonable opportunity to prepare a defense.
(People v. Jones (1990) 51
Cal.3d 294, 317 (Jones).) This includes fair notice of allegations that
will increase the defendant’s punishment, including section 664, subdivision
(a) allegations. (People v. Houston (2012) 54 Cal.4th 1186, 1227 (
Defendant contends the jury findings
of premeditation on the attempted murder charges (counts 3-6) should be
stricken because the prosecution failed to plead that the attempted murders
were committed with premeditation. The
Attorney General does not contest the information and amended information
failed to allege the attempted murders were deliberate and premeditated but
contends defendant has forfeited this claim by failing to object, despite
having fair notice of the allegations.
We agree. Fair notice may be
accomplished by various means, as was the case here. (See, e.g., Jones, supra, 51 Cal.3d
at pp. 317-318.)
None of the three versions of the
information against defendant included allegations that any of the four
attempted murders charged were willful, deliberate, and premeditated. Before the close of its case-in-chief,
however, the prosecution provided a list of jury instructions to the trial
court and opposing counsel, including CALCRIM No. 601 (Attempted
Murder: Deliberation and Premeditation).
CALCRIM No. 601 with counsel prior to the close of the prosecution’s case. Defense counsel did not object to inclusion
of the instruction.
name="_ftnref9" title="">[9]
The verdict forms submitted to the
jury as to counts 3-6 included the allegation that the attempted murders were
done willfully and with deliberation and premeditation. The trial court asked defense counsel if
there were any objections to the verdict forms.
No objections were made. The jury
expressly found true the allegations that the attempted murders charged in
counts 3-6 were committed willfully, deliberately, and with premeditation. The prosecutor’s sentencing memorandum sought
imposition of a life term on all four attempted murder convictions. The court sentenced defendant to a
consecutive life term on each count of attempted murder without objection.
Under these circumstances, we agree
with the Attorney General the instant case is more closely analogous to
Cal.App.4th 1009, upon which defendant relies.
In Arias, the information charged the defendant with two counts of
attempted murder, but, as in this case, failed to allege the attempted murders
were willful, deliberate, and premeditated, or to reference section 664,
subdivision (a). (Arias, supra, 182
Cal.App.4th at p. 1017.) The information
was never amended to include the allegations.
(Ibid.) Without objection from either of the parties,
the jury was instructed that if it found defendant guilty of attempted murder,
it must then determine whether the attempted murders were willful, deliberate,
and premeditated. (Ibid.) The verdict forms,
which were also submitted to the jury without objection, did not state that the
jury must make a separate finding as to whether each attempted murder was
willful, deliberate, and premeditated. (
Instead, the verdict forms required the jury’s finding as to whether the
defendant was guilty of “first degree attempted murder,†although attempted
murder is not divided into degrees. (
The jury found the defendant guilty of “first degree attempted murderâ€
as to both counts. (Ibid.) At sentencing, the
trial court imposed life imprisonment on the basis of the “first degree
attempted murder†convictions. (
We held in Arias that the defendant’s claim had not been forfeited and ordered
the trial court to strike the section 664, subdivision (a) sentencing
enhancements, remanding the matter for further sentencing. (Arias,
supra, 182 Cal.App.4th at pp.
1021-1022.) We based our decision on the
fact that the defendant was given no notice of the section 664, subdivision (a)
enhancement, and we concluded “[t]his was no mere formal defect in
information,†but rather an omission that prejudiced a substantial right. (Id.
at p. 1020.) We held that neither abuse
of discretion nor harmless error standards of review were applicable,
distinguishing the case from those in which the charging document was amended
during trial. (Ibid.)
In Houston, our Supreme Court held the defendant forfeited his claim
that his life sentences for attempted murder must be reversed because
“defendant received adequate notice of the sentence he faced, and the jury made
an express finding that the attempted murders were willful, deliberate, and
premeditated.†(Houston, supra, 54
Cal.4th at p. 1228.) As in this
case and Arias, the information
failed to allege the attempted murders were deliberate and premeditated. (Id.
at p. 1226.) Also like
court in Houston issued instructions
that included willful, deliberate, and premeditated attempted murder. (Id.
at p. 1227.) In contrast to
willful, deliberate, and premeditated attempted murder as a special
finding. (Ibid.) Additionally, during
the presentation of the defendant’s case, the court noted the defendant faced
life imprisonment and asked the parties if there were any objections to the
instructions or verdict forms. (
Neither party objected. (
The court instructed the jury as to willful, deliberate, and
premeditated attempted murder and indicated that the verdict forms contained a
special finding on the issue. (
The jury expressly found the defendant guilty of willful, deliberate,
and premeditated attempted murder, and the defendant was sentenced in
accordance. (Id. at pp. 1227-1228.) The
defendant did not object at any time. (
The Houston court distinguished Arias
on the basis that in Arias, it was
not clear when the jury instructions and verdict forms were issued, or whether
the parties had discussed the issue of the section 664, subdivision (a)
allegations, and the jury had not expressly found that the murders were
willful, deliberate, and premeditated. (
Houston reasoned that the
defendant had fair opportunity to object to the instructions or jury forms at
many times during the proceedings, but had failed to do so, depriving the trial
court of the opportunity to hear argument on whether the information should be
amended, and remedy the situation appropriately. (Id.
at pp. 1227-1228.) Accordingly,
forfeited his claim. (
The circumstances here are the
same. Although the information was
inadequate, defendant had fair notice of the prosecutor’s intent to pursue the
finding and sufficient time to object.
Counsel specifically discussed modifications to CALCRIM No. 601 prior to
the close of the prosecution’s case, but there were no objections to its
inclusion. Because a minor modification
was made, as noted above, it is clear the defense had actual notice of the
instruction and therefore had notice of the allegations as well. There were numerous discussions regarding
jury instructions, and counsel were specifically asked whether they objected to
the verdict forms, which included the special findings. Moreover, here the jury expressly found
defendant guilty of willful, deliberate, and premeditated attempted murder in
counts 3-6, whereas in Arias, the
jury convicted the defendant of “first degree attempted murder,†a crime which
did not exist. We therefore hold that
under the reasoning of Houston,
defendant, here, has forfeited his claim that his four life sentences must be
reversed due to defects in the charging document.
IV. Joint
and Several Liability on Direct Victim Restitution
Defendant requests that we order the
trial court to amend the awards of direct victim restitution against him and
Casio to reflect the imposition of joint and several liability.
Defendant and Casio were tried
together but sentenced separately. Casio
was convicted of the same charges, with the exception that he was additionally
convicted of felon in possession of a firearm.
On July 10, 2011, the trial court ordered defendant to pay direct victim
restitution in the amount of $38,530.89 to the Victim’s Compensation Board, and
$1,669.50 to Nicole Richards for out-of-court funeral expenses (§ 1202.4, subd.
(f)).
title="">[10]
Defendant argues the order for
restitution in his case should have been made joint and several with the order
in Casio’s case to avoid multiple reimbursement for a single expense, which
would result in a windfall to the victims’ families.
Defendant forfeited his claim by
failing to object below. (
817, 820.) “[A]ll ‘claims involving the
trial court’s failure to properly make or articulate its discretionary
sentencing choices’ raised for the first time on appeal are not subject to
review. [Citations.]†(People
v. Smith (2001) 24 Cal.4th 849, 852 (Smith).) Relying on People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1535 (
sentence was unauthorized, and as a result, his claim was not forfeited. Defendant’s reliance is misplaced. First, Blackburn
did not address forfeiture by failure to object, and “[i]t is axiomatic that an
opinion does not stand for a proposition the court did not consider.†(People
v. Taylor (2010) 48 Cal.4th 574, 626.)
Moreover, the unauthorized sentence exception only applies to sentences
that could not be lawfully imposed under any circumstance, where it is
unnecessary to review the factual findings of the trial court, and where there
is no need to remand the matter to the trial court. (Smith,
supra, at p. 852;
571, 578.) The exception does not apply here.
Even if defendant had not forfeited
his claim by failing to raise it, it is without merit. Although Blackburn
held that a trial court has “the authority to order direct victim restitution
paid by both defendants jointly and severally[,]†neither Blackburn nor the other cases defendant cites stand for the
proposition that the court must order
joint and several liability. (
1044, 1049-1052 (Madrana).)
Section 1202.4, subdivision (j)
provides that restitution paid “shall be credited to any other judgments for
the same losses obtained against the defendant arising out of the crime for
which the defendant was convicted.†“The
court in People v. Zito [(1992) 8
Cal.App.4th 736, 745,] construed the term ‘defendant’ to include
‘codefendants.’ [Citation.] Thus if the
combined payments made by multiple defendants exceed the victim’s loss, each
defendant would be entitled to a pro rata refund of any overpayment.†(
1096, 1100 (Arnold).) Although Arnold
discussed an earlier statute (Gov. Code, § 13967, subd. (c)), the language of
the two versions of the law is sufficiently similar for its interpretation to
be applicable here. (
overpayment to the victims, we conclude there was no error meriting a remedy on
appeal.
The
judgment is affirmed.
KRIEGLER, J.
We
concur:
MOSK, Acting P. J.
KUMAR, J.
stated.
violence (§ 236) in counts 7 and 8.
