PEOPLE v. GONZALEZ








Filed 12/9/10




CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. PERLA ISABEL GONZALEZ, Defendant and Appellant.

D055698 (Super. Ct. No. FVA024527)

STORY CONTINUE FROM PART I….



Finally, we note that while the jury in the case before us asked a question during deliberations about Perla's mental state, we conclude that fact alone does not alter application of the harmless error standard. We agree the question was an important one on the issue of whether further instruction was needed. The court's answer to the jury question constitutes the instructional error. If we were to take a further step and conclude the jury question alone requires reversal of this issue, we would be applying a per se reversible error standard, which is contrary to substantial controlling authority. We are unwilling to take that step.
Briefly, in Concha II the victim drove up to his business late at night, and parked his car in an alley. Before he got out of his car, the victim was met by two men who threatened him and attempted to rob him. Two other men stood watch nearby. The victim briefly fought with his four attackers in the alley and then began running down a street. The four men followed the victim for a quarter of a mile. As the victim ran, he called out for help and tried to use his mobile phone. His attackers caught up with him as he tried to scale a fence, and began to stab the victim in the back. The victim remembered he had a small pocket knife, he pulled it out, faced his four attackers and began to stab them out of fear for his own life. The victim again ran from his attackers to the front door of a nearby house, where he cried out for help and banged on the door. Eventually the occupants of the house opened the door, saw the victim bleeding profusely from multiple cuts and called the police. (Concha II, supra, 182 Cal.App.4th at pp. 1076-1077.)
According to the defendants, because the parties and the jury were unaware of the personal willful, deliberate, and premeditation requirement as to the first degree murder count, the jury could not have made, and did not make, the requisite finding to support that conviction, nor could the court do so on remand. The court rejected this argument, and reasoned: "Defendants, however, misperceive the harmless error standard applicable to a case such as this one, in which the instructional error did not require the jury to make a finding on an essential element of the offense—a willful, deliberate and premeditated killing. As discussed above, based on the authorities, we do not have to determine if the verdicts reflect that the jury actually determined that both defendants deliberated and premeditated the attempted murder. Rather, we may review the entire record to determine whether it is clear beyond a reasonable doubt that a rational jury would have made the necessary findings of premeditation and deliberation absent the error." (Concha II, supra, 182 Cal.App.4th at p. 1089, italics added.)
The court then reviewed the evidence in the record and concluded from it that a "rational jury would have found that each defendant deliberated and premeditated the attempted murder of [the victim]." (Concha II, supra, 182 Cal.App.4th at p. 1089.) Specifically, the court found that two defendants confronted the victim in the alley, demanded money and twice threatened to kill him. After the victim resisted his four attackers, they fought with him in the alley, and then chased him for a quarter of a mile with beer bottles, which they used to beat and stab the victim. The court noted the assault against the victim was sufficiently severe that the victim received multiple stab wounds to his head and body, requiring 60 stitches to close. (Ibid.)
The court in Concha II also noted that the jury returned guilty verdicts on the attempted murder counts, which required the jury to find that each defendant intended to kill the victim, or shared in the other's intent to kill, and that the jury found true each defendant personally committed a provocative act during the attempted murder of the victim and one of the defendants personally used a deadly weapon—a beer bottle—during the attempted murder. (Concha II, supra, 182 Cal.App.4th at p. 1090.)
In response to the argument of defendants that the evidence at trial was controverted regarding their lack of premeditation and deliberation, the court found the evidence submitted by defendants "dealt with their participation in the murder and their intent to kill, and the jury found against them on those points. [Defendants] did not contest the facts that go specifically to premeditation and deliberation—the confrontation in the alley, the chase, the cornering of [the victim] and the repeated stab wounds with a deadly weapon. Premeditation and deliberation was submitted to the jury on the attempted murder counts; thus defendants had the opportunity to address those elements. The facts supporting premeditation and deliberation are uncontradicted once the intent element was established. Although the jury verdict is deficient in that there was not a finding of premeditation and deliberation as to each defendant, the jury did nevertheless render a verdict of first degree murder against both defendants. Based on the evidence, the jury verdict would have been the same absent the error." (Concha II, supra, 182 Cal.App.4th at p. 1090.)
We conclude Concha I and Concha II are instructive here.^[1] Like the trial court in Concha I, the trial court here instructed the jury on premeditation and deliberation for first degree murder by referring the jury to the instruction on first degree attempted murder, which as Concha I teaches, was error because unlike attempted murder, for murder a "defendant cannot be held vicariously liable for the mens rea of an accomplice."^[2] (Concha I, supra, 47 Cal.4th at p. 665.) Nonetheless, like the court in Concha II, we conclude the trial court's instructional "error" was harmless beyond a reasonable doubt because the evidence before us shows a rational jury would have found Perla personally deliberated and premeditated the attempted murder of Canas.
Indeed, the evidence of Perla's premeditation and deliberation in the attempted murder of Canas is equally as strong, if not stronger, than the evidence of attempt against the defendants in Concha I and II. In addition, we note such evidence against Perla was uncontroverted, in contrast to the evidence of her intent to kill, which the jury found in convicting her of first degree attempted murder. Perla has not challenged that finding on appeal.
The record contains uncontroverted evidence showing Perla personally premeditated and deliberated the attempted murder of Canas: Perla had been outside Curiel's house the night before Morales was killed because of a dispute between Canas and her brother Ricardo; Perla planned the assault on Canas the following day; Perla called Curiel on the morning of the killing and learned that Canas intended to pick up his daughter at a predetermined location; Perla first drove Morales and Jorge to Curiel's house to make sure Canas's daughter was still at home and had not been picked up by Canas; Perla and her accomplices discussed how the assault against Canas would take place; Perla drove to the intersection where Canas was to pick up his daughter, parked the car and waited for Canas; Perla brought a loaded rifle to the assault; Perla stood about 10 feet away from where Canas and her boyfriend fought, by her car where her loaded rifle was located; Perla did not attempt to break up the fight between the two men; Perla grabbed her loaded rifle from the car after Canas successfully fought off Morales's knife attack; Perla grabbed her rifle on her own accord; Perla cocked her rifle with her left hand and pointed it at Canas; and Perla next handed the rifle, which was ready to fire, to Morales, as Morales ran toward her after the assault had turned deadly.
Our dissenting colleague largely ignores most of this evidence in arguing that the "extent of Perla's participation in the attempted murder of Canas appears to have been limited to her handing the firearm to Morales." (Conc. & dis. opn, p. 3, italics added.) We note, however, the issue is not merely Perla's participation in the attempted murder of Canas, but rather whether she personally premeditated and deliberated in connection with that attempt. In any event, Perla clearly did more than merely hand the rifle to Morales, as it was Perla's idea, among other things, to assault Canas in the first place; it was Perla's rifle; it was Perla's decision to bring the loaded rifle to the assault; and it was Perla's decision to pull out the rifle from her car, when the assault had turned deadly, cock it and hand it to Morales to use against Canas.
Unlike our dissenting colleague, we conclude such evidence amply proves the reflection in advance and weighing of considerations sufficient to establish beyond a reasonable doubt that a rational jury would have found Perla, as opposed to her accomplice, personally premeditated and deliberated the attempted murder of Canas. (See Concha II, supra, 182 Cal.App.4th at pp. 1075, 1090.)
Lastly, we also disagree with our dissenting colleague that the trial court "directed the jury to an instruction that grossly misstated the law regarding a key distinction between first and second degree murder." (Conc. & dis. opn., p. 4, italics added.) As we already have noted the trial court here relied on CALCRIM Nos. 560 and 601 as they then existed, before Concha I was decided by our Supreme Court. Although Concha I concluded these instructions were improper as we discussed ante, we do not agree it was a gross misstatement of the law, nor do we agree that this error took on additional significance because the trial court repeated what was then a proper instruction a second time during deliberations in response to a jury question. For these reasons, we conclude the instructional error by the trial court was harmless.
D. Instructional Error—Lawful Killing for Provocative Act Murder^[3]
Perla next contends the jury should have been told the provocative act theory of murder could not properly apply if Canas used lethal force solely to prevent an escape, rather than in response to a provocative act. Because this principle exonerates, the argument runs, it therefore constitutes a defense, and either the trial court had a sua sponte duty to give an appropriate instruction delineating it for the jury, or defense counsel rendered Perla ineffective assistance for failing to request such an instruction.
The trial court's instruction to the jury included the following paragraph from CALCRIM No. 560: "A defendant is not guilty of the murder of Fernando Morales—or I am sorry—if the killing of Fernando Morales was caused solely by the independent criminal act of someone else. An independent criminal act is a free, deliberate, and informed criminal act by a person who is not acting with the defendant."
During closing argument, counsel reinforced the need for the jury to evaluate "self-defense" in assessing whether Canas's killing of Morales was criminal and, thus, an independent act undermining the provocative act murder doctrine. The prosecutor argued that Canas had the right to defend himself in light of the deadly attack by Morales.
Defense counsel, however, contended that Canas had no right to shoot Morales in the back as he was running away and even contended that one shot was fired while Morales was lying on the ground. Defense counsel also contended that Canas's shooting of Morales was not self-defense and, because it was not, "[t]hat's an independent act." As such, defense counsel contended, "[t]hat [independent act] is something that gets in between, and you cannot then justify putting Fernando Morales's[s] . . . death on [Perla]."
In reply, the prosecutor argued that for Canas to be acting in self-defense, there was no requirement that he only fire one shot or shoot at a particular area of the body. The prosecutor also told the jury that Canas had the right to defend himself and that Canas was not an intervening criminal act because he committed no crime by defending himself.
We have found no case to support Perla's argument that the trial court erred when it failed to give sua sponte an instruction on self-defense as it pertains to the victim Canas and whether he was legally justified in shooting Morales as Morales ran away.^[4] This is because the issue of whether the killing was lawfully justified is rooted in principles of proximate cause, and not self-defense. (See Concha I, supra, 47 Cal.4th at pp. 660-661; People v. Cervantes, supra, 26 Cal.4th at p. 866.) Indeed, our Supreme Court in Concha I recently confirmed that principles of proximate cause govern in determining whether a killing is attributable to the (provocative) act of defendant: "[T]he defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. [Citation.] 'In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant's liability will depend on whether it can be demonstrated that his own conduct proximately caused the victim's death . . . .' [Citation.] '[I]f the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannot attach.' [Citation.] " (People v. Concha, supra, 47 Cal.4th at p. 661.)
Thus, the trial court here did not err when it failed sua sponte to instruct on self-defense as it pertained to Canas and whether he was legally justified in shooting Morales just seconds after Canas, who himself was shot three times, wrestled the rifle away from Morales. Defense counsel also did not render ineffective assistance by neglecting to ask for such an instruction, and instead properly focused his argument on proximate cause in arguing that Canas was an independent intervening cause, absolving Perla of liability for the murder of Morales, which the jury rejected.^[5]
E. Instructional Error—Failing to Instruct on Involuntary Manslaughter
Finally, Perla contends the trial court erred when it failed to instruct the jury on involuntary manslaughter as a lesser included offense of murder. Defense counsel requested the jury be instructed on "all lesser-included offenses to both Counts 1 and 2," including involuntary manslaughter based on Perla's act of brandishing the gun. (See generally § 417.)
The trial court refused to instruct on involuntary manslaughter, ruling: "Here is the problem I have [with involuntary manslaughter]. I think I said it before. I don't know how you get around this. . . . [T]he problem is with provocative act murder, provocative act provides if it's proven that she intentionally—I think all the evidence is she took the gun out . . . I am assuming that that evidence is correct; maybe it isn't. But if the evidence—most of the evidence in this case has suggested that Ms. Gonzalez took the gun out of the car and at some point handed it to Fernando Morales. [¶] Provocative act gives—as long as that's intentional—and I don't see any evidence it wasn't, getting the gun out and giving it to him in that situation . . . . [¶] The argument on voluntary [manslaughter] is that self-defense—or imperfect self-defense or heat of passion might negate the intent and therefore it would mean that it wasn't an intentional provocative act. But here I can't see how it wasn't intentional."
It is axiomatic that a " 'trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.]" (People v. Lacefield (2007) 157 Cal.App.4th 249, 256; see also People v. Moye (2009) 47 Cal.4th 537, 548.) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support . . . . [¶] . . . . 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Although involuntary manslaughter includes a killing that "occurs during the commission of a " 'noninherently dangerous felony,' " " 'the killing must be unintentional' " and without malice. (People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.) Where the evidence unmistakably shows an intentional killing, no instruction on involuntary manslaughter is required. (Id. at pp. 1556-1557 [no involuntary manslaughter instruction required when the defendant fired five or six shots at victim, twice hitting the victim in the back]; People v. Hendricks (1988) 44 Cal.3d 635, 643 [no involuntary manslaughter instruction required when, although the defendant denied intent to kill, he shot victims six times and five times respectively at point-blank range].)
Here, the evidence shows Perla grabbed the rifle, cocked it and handed it to Morales after Morales had pulled a knife on, and cut, Canas, during a fight instigated by Morales and Perla, his accomplice, that had turned deadly. Based on such evidence, the jury determined Perla intentionally did a provocative act, she knew that the natural and probable consequences of the provocative act were dangerous to human life and then acted with conscious disregard for life. On this record, we conclude the trial court did not err in refusing to instruct on involuntary manslaughter.
DISPOSITION
The judgment of conviction is affirmed.



BENKE, Acting P. J.

I CONCUR:


IRION, J.

Aaron, J., concurring and dissenting:
I concur with the majority opinion, with the exception of section C (maj. opn., p. 25), because I disagree with the majority's conclusion that this court may deem the trial court's instructional error on the intent element of provocative act murder harmless beyond a reasonable doubt.
The majority concludes that the trial court erred in instructing the jury with respect to premeditation and deliberation in relation to the charge of provocative act murder, but further concludes that the error was harmless beyond a reasonable doubt because, in its view, "the evidence before us shows a rational jury would have found Perla personally deliberated and premeditated the attempted murder of Canas." (Maj. opn., p. 32.)
During deliberations, the jury in this case sent a note to the trial court requesting an instruction on second degree murder. The jury note reads, "Is #39 for second degree murder‌^[6] We need an explanation of 2nd degree murder." In response, the court replied, "No," and referred the jury to CALCRIM 560, which in turn, referred the jury to the instruction on attempted murder. That instruction informed the jury that it could find that Perla acted with premeditation and deliberation "if either [Perla] or Fernando Morales or both of them acted with that state of mind." (Italics added.) This was a significant misstatement of law because, in fact, in order to find Perla guilty of first degree provocative act murder, the jury was required to find that she personally acted with premeditation and deliberation. (See People v. Concha (2009) 47 Cal.4th 653, 665 (Concha I) ["[A] defendant charged with murder or attempted murder can be held vicariously liable for the actus reus of an accomplice, but, for murder, a defendant cannot be held vicariously liable for the mens rea of an accomplice"], citing People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
In People v. Concha (2010) 182 Cal.App.4th 1072 (Concha II), on which the majority heavily relies, the Court of Appeal concluded that the error in failing to instruct the jury that it must find that the defendant personally acted willfully, deliberately, and with premeditation in order to find a defendant guilty of first degree murder, was harmless because "[t]he evidence was such that beyond a reasonable doubt a rational jury would have found that each defendant deliberated and premeditated . . . ." (Id. at p. 1089.) The Concha II court reached this conclusion on the ground that there was no basis to distinguish between the conduct of the four defendants, since, as the court noted, it was undisputed that all four defendants "chased [the victim] for a quarter mile with deadly weapons, and participated in one fashion or another in the repeated and brutal stabbing and beating of [the victim] after cornering him . . . ." (Id. at p. 1090.) Here, in contrast, there is a significant distinction between the conduct of Perla and that of her accomplice, Morales. While the jury found that Perla used a firearm, under Penal Code section 12022.53, subdivision (b), it also found that she did not intentionally discharge a firearm during the commission of the attempted murder, under Penal Code section 12022.53, subdivision (c). Based on these findings, one can reasonably infer that the jury concluded that Perla handed the gun to Morales, but also concluded that she did not shoot Canas.^[7]
The majority's contention that "the evidence of Perla's premeditation and deliberation in the attempted murder of Canas is equally as strong, if not stronger than the evidence of attempt against the defendants in Concha I and II" (maj. opn., pp. 32-33), is simply not supported by the evidence. In Concha, it was clear that all of the defendants actively participated in the beating and stabbing of the victim; in this case, in contrast, the extent of Perla's participation in the attempted murder of Canas appears to have been limited to her handing the firearm to Morales. Given that Morales fired at Canas multiple times, there was no real question that Morales premeditated and deliberated the shooting. Because Morales shot Canas and Perla did not, in this case, unlike in Concha II, there was clearly a factual basis upon which a rational jury could have found that Morales premeditated and deliberated the shooting, but that Perla did not. There is thus a real possibility that the instructional error in this case led the jury to find that Perla premeditated and deliberated based not on a finding that she personally premeditated and deliberated, but rather, on a finding that Morales did.
Another critical factor that distinguishes the error in this case from the error in Concha is the context in which the instructional error occurred. After having heard all of the evidence, arguments, and jury instructions, and having deliberated for some period of time, the jury in this case specifically requested an instruction on second degree murder. In response, the court directed the jury to an instruction that grossly misstated the law regarding a key distinction between first and second degree murder. Thus, the error in this case was not, as the majority suggests, simply failing to instruct on an element of the offense or providing the jury with an erroneous instruction on the mental state required to find the defendant guilty, but rather, providing that erroneous instruction to a deliberating jury that had asked for guidance on this specific issue. The majority inexplicably fails to address the impact of the trial court's erroneous response to the jury's pointed question in its harmless error analysis, other than to state, "If we were to . . . conclude the jury question alone requires reversal of this case, we would be applying a per se reversible error standard, which is contrary to substantial controlling authority."^[8] (Maj. opn., p. 29.)
Instead, in assessing whether the instructional error was harmless beyond a reasonable doubt, the majority limits its inquiry to the abstract question of whether a hypothetical "rational jury" would have found that Perla premeditated and deliberated. However, in assessing the impact of the error, one cannot ignore the fact that the actual jury specifically requested an instruction on second degree murder and that in response, the court directed the jury to an instruction that misstated the critical intent element.
This court has recognized that, "there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jury's inquiry during deliberations." (People v. Thompkins (1987) 195 Cal.App.3d 244, 252-253.) During its deliberations, the jury in this case sent the court a note requesting a specific instruction, and in response, the court provided an instruction that was legally incorrect. In view of the circumstances in this case, the jury's request for an instruction on second degree murder was clearly a rational one. The fact that in response, the trial court directed the jury to an instruction that was incorrect as to a critical distinction between first degree murder and second degree murder, i.e., premeditation and deliberation, and that effectively invited the jury to find Perla guilty of first degree murder if it found that Morales premeditated and deliberated, precludes a determination that the instructional error was harmless beyond a reasonable doubt.


AARON, J.


Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---