THE PEOPLE v. CURRY

Filed 12/31/07

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Story continued from part II . . . .

The Supreme Court then turned to the question whether evidence of voluntary intoxication is admissible on the question whether a defendant tried as an aider and abettor had the required knowledge and intent. (Mendoza, supra, 18 Cal.4th at p. 1123.) It reviewed the historical development of section 22^[1]and held that a jury may consider evidence of defendants voluntary intoxication in deciding whether he or she had the knowledge and intent necessary for aiding and abetting commission of the target offense. (Mendoza, supra, at pp. 1118, 1131.) The Mendoza court also concluded that such evidence was admissible regardless of whether the target crime required general or specific intent. (Id. at p. 1132.) The Supreme Court emphasized that its holding was very narrow and explained, in language challenged by Curry and Russell, that: Defendants may present evidence of intoxication solely on the question whether they are liable for criminal acts as aiders and abettors. Once a jury finds a defendant did knowingly and intentionally aid and abet a criminal act, intoxication evidence is irrelevant to the extent of the criminal liability. A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits 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 reasonably foreseeable. [Citation.] Intoxication is irrelevant in deciding what is reasonably foreseeable. (Id. at p. 1133, some italics added.)

CALCRIM No. 404 is faithful to Mendoza. Regardless of Currys and Russells view that Mendoza misstates the law, we are bound by that decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, in our view, Mendoza does not misstate the law.

3. The Equal Protection Claim Fails:

Russell misreads Mendoza and its impact on the equal protection claim. The constitutional guaranty of equal protection of the laws has been judicially defined to mean that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness. [Citations.] The concept recognizes that persons similarly situated with respect to the legitimate purpose of the law receive like treatment, but it does not, however, require absolute equality. [Citations.] (People v. Romo (1975) 14 Cal.3d 189, 196.)

An aider and abettor charged with attempted murder who is aware of the perpetrators intent to kill before the offense, is not similarly situated to an aider and abettor charged with attempted murder as a reasonably foreseeable consequence of felony assault under a natural and probable consequence theory. While these two theories share a knowledge and intent requirement, the natural and probable consequence theory requires more. In the latter case, after the jury finds the required knowledge and intent, it must also determine, based on an objective test, whether the attempted murder is the natural and probable consequence of the felony assault. This determination is based on whether the charged offense is a reasonably foreseeable consequence of his confederates action. (Prettyman, supra, 14 Cal.4th at pp. 260-261.) Thus, the determination does not implicate the aider and abettors mental state.

Mendoza holds that evidence of voluntary intoxication is admissible on the question of knowledge and intent (Mendoza, supra, 18 Cal.4th at pp. 1118, 1131), which requires the jury to engage in a subjective analysis of whether intoxication affected the defendants formation of the required mental state. The Mendoza court properly concluded that [i]ntoxication is irrelevant in deciding what is reasonably foreseeable. (Id. at p. 1133.)

However, even if we were to conclude the jury should have been instructed to consider defendants intoxication in deciding whether attempted murder was a natural and probable consequence of the assault, it is clear neither Curry nor Russell was prejudiced by any alleged instructional error.

In finding Russell guilty of attempted murder, the jury found true the allegation that she acted with premeditation and personally used a deadly and dangerous weapon. Similarly, the jury found Curry guilty of attempted murder and found true the allegation he personally used a deadly and dangerous weapon in the commission of that crime. The jury also found both Curry and Russell guilty of assault and found true the allegation that they personally inflicted great bodily injury upon L.R., when they knew or should have known L.R. was pregnant. These findings demonstrate that the jury: (1) rejected defendants voluntary intoxication claims and (2) found Curry and Russell guilty as perpetrators. Indeed, Russell acknowledged she felt the effects of alcohol and Ecstasy the night of the assault, but [n]ot so much to the point where I didnt know what I was doing. Thus, any error in instructing the jury not to consider evidence of intoxication in deciding whether attempted murder is a natural and probable consequence of felony assault was harmless. The jurys findings also preclude any claim of prejudice from Russells claim that CALCRIM No. 404 violated her constitutional rights.

B. Claims Raised By Buford:

Buford makes the more general claim that the instructions on voluntary intoxication were incomplete. He contends that the instructions failed to guide the jury in its consideration of evidence of voluntary intoxication as it related to his liability for the specific intent crimes of attempted murder on a non-natural and probable consequences theory, and robbery, attempted robbery and kidnapping for robbery on an aider and abettor theory of liability. We reject these contentions on two grounds.

First, we conclude that when read together (see People v. Smithey (1999) 20 Cal.4th 936, 963), the instructions contained in CALCRIM Nos. 404 (Intoxication), 625 (Voluntary Intoxication: Effects on Homicide Crimes) and 3426 (Voluntary Intoxication) provided adequate guidance to the jury. CALCRIM No. 3426 specifically told the jurors that they could consider defendants voluntary intoxication in deciding whether the defendant acted with the specific intent . . . [] [r]equired for Counts One, Three, Four, Five and Six . . . .

Second, Buford was not prejudiced by any error in instructing the jury on voluntary intoxication because there is no evidence he was intoxicated -- or that he even drank alcohol -- the night of the incident. Russell testified that she purchased bought three bottles of Mad Dog 20/20 at a liquor store in route to the park. Buford bought a Sprite. According to Russell, she and Boone shared one bottle, Curry drank a second, and all three of them shared the third bottle. This lack of evidence explains why Bufords attorney did not mention voluntary intoxication in his closing argument.

V.

Jury Instructions on Premeditation

As we explained, the prosecutor tried defendants for attempted premeditated murder of L.R.s unborn child in count one on three theories: (1) as perpetrators; (2) as aiders and abettors of attempted murder; and (3) as aiders and abettors of felony assault on L.R., the natural and probable consequence of which was attempted murder. The court instructed the jury on the special finding in count one: The special finding of premeditation and deliberation may be found true where a principle [sic] attempted a willful, deliberate and premeditated murder even though the aider and abettor did not personally deliberate or premeditate. The aider and abettor must share the intent to kill. However, when instructing on the jury on attempted murder as a natural and probable consequence of felony assault, the court did not describe the offense as premeditated attempted murder.^[2]

Russell argues that these instructions improperly allowed [the] jurors to attach a premeditation finding to [her] attempted murder charge, even if they explicitly found she did not personally premeditate, exposing her to a sentence of life without parole . . . . She also maintains that the instructional error violated her constitutional right to due process. We conclude the instructions were a correct statement of the law, and even if the instructions were improper, Russell suffered no prejudice.

Russell misreads the instruction on premeditation and deliberation. To find an aider and abettor criminally liable for premeditated attempted murder, the jury must find that the defendant share[d] the intent to kill. A jury could not make a true finding on the special allegation on premeditation if it determined that Russell only intended to aid and abet a perpetrator in felony assault without harboring the intent to kill L.R.s unborn child.

Moreover, People v. Lee (2003) 31 Cal.4th 613 (Lee) holds that a person may be convicted of premeditated attempted murder as an aider and abettor even if he or she did not personally act with willfulness, deliberation and premeditation. (Id. at pp. 624 & 627.) Russell acknowledges this proposition as far as it goes, but notes that the Supreme Court left open the question whether the same rules applies where the defendant is found guilty of attempted murder on a theory of natural and probable consequences. We agree with the reasoning of People v. Cummins (2005) 127 Cal.App.4th 667, 680 and People v. Laster (1997) 52 Cal.App.4th 1450, 1473 that Lee should apply in a case involving the natural and probable consequences doctrine.

Russell also urges us not to apply Lee in the circumstances of this case because: (1) a person who only aids and abets a lesser offense than attempted murder is insufficiently blameworthy for the harsh life sentence that premeditated attempted murder carries; (2) imposing a life sentence on a defendant who has not directly aided and abetted an attempted premeditated murder would violate the federal and state constitutions; and (3) Lee undermines the subsequent Supreme Court ruling in People v. Seel (2004) 34 Cal.4th 535 which holds that premeditation is an element of the offense of attempted murder. We need not address these arguments. Even if the court erred in instructing the jury on premeditation in the circumstances of this case, the error was harmless beyond a reasonable doubt.

The jury convicted Russell of conspiracy to commit murder in addition to premeditated attempted murder. In finding Russell guilty of conspiracy to commit murder, the jury necessarily found that she premeditated and deliberated the murder of L.R.s unborn child. (See People v. Cortez (1998) 18 Cal.4th 1223, 1232 [The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder], italics omitted.)

The record provides overwhelming support for the jurys findings. Russell drove L.R. to the park fully aware of the plans to beat her up in an attempt to cause a miscarriage. She punched L.R. in the face during the first assault. Although Russell and Boone left in the Malibu after L.R. had been beaten and robbed of her shoes and cell phone they returned to the park when Buford phoned and told them to return and finish the job. Boone testified that she asked Buford if he was trying to kill L.R., and Buford said, [N]o, just the baby. He wanted Boone to continue, as long as that baby gets up out of her. This time the two women came armed with a baseball bat and flashlight which Russell used to strike L.R. on the head. The second assault left L.R. unconscious.

VI.

Sentencing to the Upper Term Without a Jury Trial

On the Aggravating Factors

Citing Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403](Blakely), and Apprendi v. New Jersey (2000) 520 U.S. 466 [147 L.Ed.2d 435] (Blakely), Buford and Curry argue that the court violated their Sixth Amendment rights by sentencing them to the upper term for their convictions for robbery (Buford) and assault with a deadly weapon and attempted murder (Curry) without permitting the jury to decide the aggravating factors beyond a reasonable doubt.^[3] We agree, but conclude the error was harmless.

We begin by rejecting the Attorney Generals argument that Buford and Curry forfeited their claim of Apprendi/Blakely/Cunningham error by failing to object on federal constitutional grounds at sentencing. Any request for jury trial on the aggravating circumstances would have been futile, because the trial court would have been required to follow the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and deny the request. (People v. Sandoval (2007) 41 Cal.4th 825, 837-838 (Sandoval).) Defendants claim has not been forfeited. (Ibid.)

Turning to the merits, we note that none of the aggravating circumstances cited by the trial court come within the exceptions to the requirement of jury determination set forth in Apprendi and Blakely -- specifically, facts admitted by the defendant (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413]) or the fact of prior convictions (id. at p. 301 [159 L.Ed.2d 412]; Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) When sentencing Buford to the upper term for robbery in count three, the court stated: In the courts view the relationship between the victim and Mr. Buford was such that it certainly constitutes a betrayal of a close position of trust, and an unusually vulnerable victim in this matter, and again find those circumstances in aggravation outweigh those in mitigation. It cited the following reasons for sentencing Curry to the upper term for attempted murder in count one: the degree of cruelty and callousness, lack of regard, the vulnerability of the victim in this matter, the length of the conduct involved in this case, all by far overtake any factors in mitigation which have been argued by your attorney on your behalf, youthfulness and lack of prior record. [] This is a case that on its facts and based on your conduct as well, in the Courts view, shocks the conscience and warrants the giving of the upper term. The court also imposed and stayed the upper term on the assault charge without further comment. Based on this record, we conclude Bufords and Currys Sixth Amendment rights were violated by imposition of the upper term sentences.

Denial of the right to jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman, supra, 386 U.S. 18 [17 L.Ed.2d 705]. (Sandoval, supra, 41 Cal.4th at pp. 838-839, citing Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 476] and Neder v. United States (1999) 527 U.S. 1, 8-15 [144 L.Ed.2d 35].) Under this standard, we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (Sandoval, supra, 41 Cal.4th at p. 838.) If we conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.) The record in this case supports such a finding as to both Buford and Curry.

As set forth in detail in the statement of facts, Buford and L.R. had dated for several months and Buford was the father of L.R.s unborn child. L.R. was seven months pregnant at the time Buford gathered his friends to rob and beat her with the intent to cause a miscarriage. It is difficult to imagine a greater breach of trust against a more vulnerable victim. (Cal. Rules of Court, rule 4.421(a)(3) & (a)(4).

Likewise, there is overwhelming evidence that Currys actions were cruel and callous toward two vulnerable victims -- L.R. and her unborn child. (Cal. Rules of Court, rule 4.421(a)(1) & (a)(3).) He kicked L.R. with both feet while she was on the ground and threw a metal garbage can on her head. Although L.R. asked to be taken to a hospital, Curry drove her around Sacramento and finally left her, bruised and bloody, at the side of the road. The fetus was in distress when L.R. arrived at the hospital.

Based on this record, we conclude a jury would have found the cited aggravating circumstances true beyond a reasonable doubt had they been given the opportunity. Accordingly, any Apprendi/Blakely/Cunningham error was harmless.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SIMS , Acting P.J.

HULL, J.

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^[1]Section 22 currently reads: (a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.

(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.

(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance. (Italics added.)

^[2]The instructions read in their entirety:

The defendant is charged in Count Two with assault with a deadly weapon or with force likely to produce great bodily injury, felony assault. In Count One, with attempted murder.

You must first decide whether the defendant is guilty of felony assault. If you find the defendant is guilty of this crime, you must then decide whether he or she is guilty of attempted murder.

Under certain circumstances, a person who is guilty of one crime may also be guilty of the other crimes that were committed at the same time.

To prove that the defendant is guilty of attempted murder, the people must prove that, one, the defendant . . . is guilty of felony assault. Two, during the commission of the felony assault, the crime of attempted murder was committed, and, three, under all of the circumstances, a reasonable person in the defendants position would have known that the commission of attempted murder was a natural and probable consequence of the commission of the felony assault.

A natural and probable consequence is one that a reasonable person would know was likely to happen if nothing unusual intervenes.

^[3]Buford does not challenge imposition of the upper term for assault with a deadly weapon in count two which the court stayed.