P. v. Cerda
Filed 7/18/13 P. v. Cerda CA2/3
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
PETER JUAN CERDA et al.,
Defendants
and Appellants.
B232572
consolidated w/B235674
(Los
Angeles County
Super. Ct.
No. MA041397)
APPEAL
from judgments of the Superior Court
of
County, Hayden Zacky, Judge.
Affirmed in part, reversed in part, and remanded with directions.
Ralph
H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant
Peter Juan Cerda.
Edward
H. Schulman, under appointment by the Court of Appeal, for Defendant and
Appellant Kyle Allin Johnson.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Louis W. Karlin and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendants
and appellants, Peter Juan Cerda and Kyle Allin Johnson, appeal their
convictions for first degree murder
(Cerda only), second degree murder
(Johnson only), and 23 counts of premeditated attempted murder, with gang
and firearm use enhancements (Pen. Code, §§ 187, 664/187, 186.22,
12022.53).
term of 816 years to life. Johnson was
sentenced to state prison for a term
of 410 years to life.
The
judgments are affirmed in part, reversed in part, and remanded with directions
as to defendant Johnson’s sentencing.
Although
Cerda and Johnson were tried jointly, they had separate juries. Their appeals have been consolidated. Viewed in accordance with the usual rule of
appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution
evidence.
a. The
On the night of February 10, 2008, a large group
of people were attending a party at a house on Katrina
Place in Palmdale.
Various witnesses, who either resided at the house or had come for the
party, testified they heard gunshots and the sound of bullets passing through
the house.
Ricardo R., who
was in the garage at the time, heard gunshots.
One shot was fired into the garage, making a hole in a television
set. Ricardo went into the house and
rushed upstairs to check on his daughter, who was sleeping in the master
bedroom with another child. He found two
bullet holes in the bathroom of the master bedroom, about three feet away from
where the children had been sleeping.
Adrianna
R. had come to the party with her friend Gerardo Salazar, a 24-year-old taxi
driver. They were sitting in the house
at the dining room table with several other people when the shooting
erupted. There were gunshots “all over
the house†and Adrianna could hear things ricocheting off the walls. When the shooting stopped, Salazar was
bleeding and lying face down on the floor.
He died from a gunshot wound to the back of the head.
At
the time of the shooting, Daniel D., Christina E. and Luze E. were on the
second floor of the house. Luze was
sleeping in one bedroom and there were two young children sleeping in a second
bedroom. Luze testified she was awakened
by the sound of 20 gunshots. Daniel
and Christina were in a third bedroom, which was located across the stairs from
the master bedroom and directly above the dining room. Daniel heard 13 or 14 gunshots. Looking out the window, he saw a large pickup
truck in the street and the muzzle flashes of a gun being fired from the truck.
That
same night, Erika V. and her sister had been attending a party at Jorge Lopez’s
house, about two blocks from the Katrina Place house. At this party, Erika was introduced to a
man called Casper, who was later identified as defendant Johnson. Jose Casillas, who had also been attending
this party, later gave Erika and her sister a ride home in his dark green
pickup truck. During the ride, Erika saw
Johnson staggering down the street: “He
was like grabbing onto himself. He
looked like he was drunk, because he . . . couldn’t walk well.â€
b. The
Morning Circle shooting (counts 15-24).
Vicente
Valle lived with 12 family members in a two-story house on Morning Circle, a
little over a mile from the Katrina Place house. About 30 minutes after the shooting at
Katrina Place, gunshots awoke Valle and his family. Valle went outside to investigate. There were six bullet holes in the exterior
of his house. One bullet had penetrated
the wall of his master bedroom. Valle’s
son, Vince, who was associated with the Val Verde Park gang, had been sleeping
downstairs at the time of the shooting.
c. Police
statements of Pedro A.
Pedro
A. talked to the police about the events of that night and the juries heard a
recording of his interview. Pedro also
spoke to Detective Donna Cheeks at the time of trial about what he had
witnessed, and Cheeks described this conversation for the juries.
Pedro
told Cheeks he went with Sal Trujillo, defendant Johnson and defendant Cerda to
the party at Jorge’s house. At one point
Cerda and Trujillo, who had left Jorge’s to visit another party nearby,
returned and told Pedro that Johnson “had been beaten up by some 18th Streeters
at the other party.†When Johnson came
back to Jorge’s a few minutes later, Pedro “could see that his lip was bloody,
and he appeared upset.†Pedro told
Cheeks that plans were made “to retaliate against the people that had beat upâ€
Johnson. Cerda retrieved an AK-47, which
Pedro described as “a long, rifle-type weapon, black with a wooden stock, and a
long banana clip.†Cerda, Johnson and
Trujillo got into Casillas’s dark green F-150 Ford truck and Casillas drove
off. Pedro did not go with them. Several minutes later, he heard gunshots.
A
few days later, Johnson told Pedro what happened: “They had all gone in the truck. They had driven back to the party house
location, driven around the block once, came back. [¶] . . . At one point, [Johnson]
had gotten into the bed of the truck and was lying down holding the gun. And when they stopped in front of the party
house, [Johnson] sat up and fired into the house.â€
In
his earlier police interview, Pedro had said the following. During the party at Jorge’s house, he learned
Cerda, Johnson and Trujillo had left to visit a “[p]arty down the street at
Katrina [Place].†When Cerda and
Trujillo returned “they were all talking shit and being loud and [said]
. . . ‘homey just got jumped by the . . . 18th’
. . . you know ‘cause that was an 18th party and shit.†A few minutes later, Johnson arrived: “He’s all mad . . . with a big ass
swollen lip and shit, ‘I just got jumped by the 18 . . . .’ †Johnson “was mad [and] heated.†The group left “Jorge’s to go to Marcos’
house and from there we’re all just . . . chillin’ you know? And . . . someone comes up
with the idea let’s go shoot at that fucker you know.†Asked who came up with this idea, Pedro
said: “I think (unintelligible) like
don’t trip we’re gonna get them fools, you know (unintelligible) a gun and some
other foolio and [Johnson’s] like, ‘Tonight.
Fuck that.’ So they went tonight
. . . .â€
Cerda
and Casillas left Marco’s to retrieve an AK-47 assault rifle from Cerda’s
house. This rifle belonged to
Cerda. “From there they come back [to
Marcos’s house]. They show off
. . . the gun . . . for like 20 minutes, 30 minutes. Wait for like an hour to smoke.†The group then left in Casillas’s truck, with
Casillas driving, Cerda in the front passenger seat, and Johnson and Trujillo
in the back seat. Two days later,
Johnson told Pedro “they had to go around the block,†and Johnson lay down in
the back of the truck with the gun, and did the shooting from there. After Johnson shot up the Katrina Place
house, the group drove to a house belonging to “some fool from VVP.†They shot up the second house because
“they’re beefing and shit.â€
d. Forensic
evidence.
Robert
Keil, a senior criminalist and firearms examiner with the Los Angeles County
Sheriff’s Department, examined the Katrina Place shooting scene.
One
bullet had gone through the garage door, pierced a wall and a television set,
and then embedded itself in the back wall of the garage. Keil found numerous bullet holes in the front
of the house. One bullet had gone
through the dining room window and a wall, and ended up inside the kitchen
refrigerator. Another bullet, which also
had gone through the dining room window, was the bullet that killed Gerardo
Salazar. Three bullets were found in the
foundation area of the south exterior wall, underneath the dining room
window. Three other bullets had gone
through a stucco wall next to the dining room window and hit the north wall of
the dining room. Another bullet had gone
through the same wall, travelled through a hallway, and hit the wall on the
opposite side of a stairway. One bullet
had gone through the frame of the front door and then hit a wooden cabinet in
the kitchen.
On the
second floor of the Katrina Place house, Keil found a bullet hole in one of the
roof tiles. This bullet had first gone
through the wall of the second bedroom and then through a pair of sliding
closet doors. There was evidence another
bullet had hit the wall of the second bedroom.
There were two bullet holes just to the left of the window in the second
bedroom; these bullets had struck the north wall of the bedroom, one of them
traveling across the hallway and through the staircase wall. Keil recovered a bullet fragment from the
master bathroom sink.
In
the street just south of the Katrina Place house, Keil found 16 spent cartridge
cases. These came from .762 by
.39-millimeter bullets, which is the ammunition fired by an AK-47
semi-automatic assault rifle. There were
16 bullet holes in the exterior of the house; bullets had struck both the
first and the second story of the house.
There were 10 bullet fragments inside the house consistent with the
spent cartridges found in the street. A
bullet recovered from the corner of the dining room had blood, tissue and bone
residue on it, indicating it was the bullet that had killed Salazar. Keil prepared a diagram showing where each of
the 16 gunshots had struck the exterior of the house and where some of
those gunshots had traveled after penetrating the house.
Police
recovered four live cartridges and four spent cartridge cases from the Morning
Circle shooting scene. Keil concluded
these spent cartridge cases matched the cartridge cases recovered from Katrina
Place. Keil opined both sets of casings
had been fired from the same AK-47 rifle.
The
bullets used in an AK-47 military assault rifle are lighter than those fired
from handguns, but they travel up to four times faster than a handgun
bullet. Because “they are traveling at a
much higher velocity†they “have the potential for penetrating a greater thickness,
greater, more substantial barriers, such as exterior walls of residences, car
doors, more substantial objects.†Keil
testified that, whereas a standard nine-millimeter round might not even
penetrate the exterior stucco wall of a house, an AK-47 round is “a very
high-velocity bullet†capable of penetrating “not only an exterior wall, but
multiple walls, regardless of whether they strike any supporting members, such
as two by four’s or anything else in the exterior wall. They have the potential to reliably perforate
. . . exterior walls, based on my experience.â€
e. Cerda’s
jailhouse phone calls.
Two
telephone calls Cerda made while in jail had been tape recorded. In the first call, he spoke to his
parents. When his mother remarked, “They
said they were gonna let you go today,†Cerda said, “No, no, no. I’m not mom.
I’m gonna be in here for a long time.â€
Then to his father, Cerda said:
“Listen to me they’re not gonna release me.†“I’m gonna be in here because I was
involved in a murder. My friend
shot someone and killed ’em. And I shot
at a house but I didn’t kill nobody, but my friend shot and killed
someone. I shot a house but I didn’t
kill nobody.â€
In
the second call, Cerda initially spoke to the father of a girl named Vanessa
and said he was in jail because he was “involved with . . . a
murder.†Cerda then spoke to Vanessa and
told her: “Yeah, I was involved with a
murder, and . . . they got me for it.â€
f. Johnson’s
police interview.
Johnson
was interviewed by Detectives Cooper and Robison. He initially denied any involvement in the
shootings. But when Cooper said, “Ok how
come your homeboys are lying on you then?,†Johnson blurted out, “Oh my fucking
God!†Asked if he had intended “to kill
somebody or to scare somebody or what?â€, Johnson said, “My point was to go back
with (unintelligible) people and just have a fight, be a big real fight. They wanted more than that. [¶]
[Cooper]: So how’d it get out of
hand? [¶] [Johnson]:
I don’t know. They just
said, ‘We’re going to bust a mission.’
And I said I’m not going.â€
Johnson
subsequently admitted he went along on the mission, but he claimed Cerda had
done all the shooting. “[Cerda] goes and
gets the gun and tells me . . . you wanna go? I’m already getting in the hood, might as
well go. I get in the car. [Cerda] gets in the bed of [the] truck and we
pull up to the house and he does it. And
then we drive up to another house that I don’t even know whose house it was and
he shot at that one too.â€
“[Robinson]: All right . . . the motivation to
go over there was that . . . they dissed you at that party.
“[Cooper]: You wanted revenge ’cause they kicked your
ass. Yes?
“[Johnson]: To get also revenge, but . . .
[Cerda] is the one that wanted to shoot it.
I didn’t even want to shoot it but they told me to.â€
When
Johnson was asked, “So . . . you guys come up with the idea to go
shoot the house up, for . . . revenge, right?â€, he replied, “Yes
sir.â€
After
further questioning, Johnson admitted he did fire the rifle: “I was drunk I didn’t know what the fuck
I was doing. I didn’t mean to hurt
nobody.†Asked, “The truth is you fired
on the 18th Street house and [Cerda] fired on the Val Verde house is that
correct?â€, Johnson replied, “Yes.â€
Johnson said they “[d]rove down the street. And they told me, when we stop, just start
shooting.†“They said . . .
I’m getting into the gang now I’m gonna have to do it.†Johnson said he was lying down in the truck
bed, but then he sat up and started shooting at the Katrina Place house. After doing the shooting, he “got back in the
back seat and [Cerda] got in the back [i.e., in the truck bed]. And then we took [Cerda] to the [Val Verde
Park] house.â€
g. Gang
“roll callâ€
In
December 2007, a probation officer searched the room of a female juvenile
thought to be affiliated with the LMS gang.
The officer found a piece of paper he described as a gang roll
call. The paper had “LMS†written at the
top, followed by a series of names, monikers and telephone numbers in a peculiar
script resembling graffiti. There was an
entry for Johnson, and there were references to Trujillo and Casillas, but
there was no mention of Cerda.
h. Gang
expert testimony.
Los
Angeles County Sheriff’s Deputy Robert Gillis testified as a gang expert. LMS or Locos Marijuanos is a street gang with
more than 50 documented members.
Gillis had personally dealt with a group of about 10 LMS members in the
Palmdale area. When Gillis first came
into contact with this gang “they were big into graffiti tagging,†but over
time their activities came to include vehicle thefts, possession of firearms,
and shootings. Based on his review of
reported police contacts, field information cards, and so-called “hard cards,â€
Gillis opined that Johnson, Cerda and Casillas had been members of the LMS gang
at the time of the shootings.
Gillis
was familiar with a gang called Val Verde Park or VVP. Vincent Valle Senior was an original founder
of the gang and his son, Vincent Junior, was a member. At the time of the shootings, VVP and LMS
were rivals. LMS was allied with a gang
called Lancas, some of whose members had shot at VVP gang members around the
corner from Vincent Valle’s house.
Gillis also testified 18th Street was “one of the largest Hispanic
gangs in southern California.†He was
not aware of any rivalry between 18th Street and LMS.
Gillis
explained the importance of “respect†to gang members and how they gain more
respect by committing violent crimes.
Losing a fight to a rival gang member would call for a violent response
in order to regain respect and street credibility, both personal respect for
the particular gang member involved in the fight and respect for the gang as a
whole. A common response would be an
organized act of retaliation. Presented
with a hypothetical question based on the evidence presented, Gillis opined the
two shootings had been committed for the benefit of a criminal street
gang. “They leave and they go arm
themselves with a gun. The
. . . sole purpose for an AK-47 or assault rifle is to kill. And they go get that weapon. They come back to the location after they
just had this . . . fight and they light up this house with a weapon
with ammunition that is capable of going through . . . multiple
houses.†“[T]hey then leave and go to a
secondary location – its rivals, as you said . . . they take the
opportunity while they are out on their mission – which is a common thing gang
members do is they go on missions – and they effect a second assault on another
residence . . . .â€
2. Defense
evidence.
Johnson testified on his own
behalf. He had been 16 years old at the
time of the shootings. He arrived at
Jorge’s party after having used methamphetamine. While there, he drank 10 to 15 beers and
smoked marijuana. After an hour, he walked
over to the Katrina Place party where he had more beer. As Johnson was leaving Katrina Place he got
into a fight. A “gang of peopleâ€
surrounded him and he “saw punches coming from all directions.†He was hit several times and knocked to the
ground. He fled the party by jumping
over a back wall. After that he walked
home and stayed there the rest of the night.
He did not return to the house where the fight occurred, and he did not
tell Pedro he had been involved in the shootings.
During
his police interview, Johnson initially told the truth by denying any
involvement in the shootings, but then said he had been present because he was
scared and wanted to go home. He was
confused and kept giving the police different stories. He ultimately admitted having shot at the
Katrina Place house because that’s what the police wanted to hear.
On
cross-examination, Johnson acknowledged he “hit up†other gang members at the
Katrina Place party by asking them “where are you from?â€, as a result of which
they punched him. But he lied to the
police when he said he had gone along with Cerda to do the drive-by
shooting. Although Johnson had told
police he only drank two to four beers at Jorge’s house and he “wasn’t like
really drunk where [you] don’t know what happened,†he testified this was
untrue. He could not explain, however,
why he would have lied to the police about how much he drank that night.
Johnson
testified he was a member of LMS in 2008.
He had known Cerda for about a year before the shootings; Cerda was not
an LMS member.
Cerda
did not testify.
3. Rebuttal
evidence.
Both juries heard the recorded
police interviews with Johnson that had initially been played only for his
jury.
CONTENTIONS
1. There was insufficient evidence to support
defendants’ convictions.
2.
Cerda’s convictions must be overturned because the trial court gave an
erroneous instruction on the natural and probable consequences doctrine.
3. Defendants’ convictions must be overturned
because the trial court used a superseded version of CALCRIM No. 400.
4. The trial court erred by failing to instruct
the two juries they could convict the defendants of shooting at an occupied
dwelling house (§ 246).
5. The trial court improperly instructed the two
juries on the so-called “kill zone†theory.
6. Johnson’s attorney was ineffective for
failing to ask for a jury instruction on a voluntary intoxication defense.
7. Cerda’s trial attorney was ineffective for
failing to object to inadmissible portions of the gang expert’s testimony.
8. Johnson’s convictions must be reversed for
cumulative error.
9. Cerda’s sentencing was improper.
10.
The trial court erred by not ordering Cerda’s probation report until
after sentencing.
11.
Johnson’s sentence constituted cruel
and unusual punishment under the Eighth Amendment.
DISCUSSION
1. There
was sufficient evidence to sustain defendants’ convictions.
Defendants contend
there was insufficient evidence to sustain their premeditated attempted murder
convictions arising out of the Katrina Place and Morning Circle shootings. This claim is meritless.
a. Legal
principles.
(1) Standard
of review.
“In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole 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 –
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same
effect: Under principles of federal
due process, review for sufficiency of evidence entails not the determination
whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. [Citation.] The standard of review is the same in cases
in which the prosecution relies 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. ‘ “If
the circumstances reasonably justify the trier of fact’s findings, the opinion
of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the
judgment.†’ [Citations.]†’ [Citation.]â€
(People v. Rodriguez (1999) 20
Cal.4th 1, 11.)
Cerda asserts “[t]he fact that the jury convicted [him] is of
no consequence to the appellate review of the sufficiency of the
evidence.†Not so. “Perhaps the most fundamental rule of appellate law is that
the judgment challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error. [Citation.]
Thus, when a criminal defendant claims on appeal that his conviction was
based on insufficient evidence of one or more of the elements of the crime of
which he was convicted, we must begin
with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us
otherwise. To meet that burden, it is
not enough for the defendant to simply contend, ‘without a statement or
analysis of the evidence, . . . that the evidence is
insufficient to support the judgment[] of conviction.’ [Citation.]
Rather, he must affirmatively
insufficient.†(People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
(2) Elements
of aiding and abetting, and premeditated
attempted murder.
“A person aids and abets
the commission of a crime when he or she, (i) with knowledge of the unlawful
purpose of the perpetrator, (ii) and with the intent
or purpose of committing, facilitating or encouraging commission of the crime,
(iii) by act or advice, aids, promotes, encourages or instigates the
commission of the crime.†(
1164.)
“ ‘The mental state required
for attempted murder has long differed from that required for murder
itself. Murder does not require the
intent to kill. Implied malice – a conscious
disregard for life – suffices.
[Citation.]’ [Citation.] In contrast, ‘[a]ttempted murder requires the
specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.’
[Citations.]†(
733, 739.)
“[I]t is well settled that intent to
kill or express malice, the mental state required to convict a defendant of
attempted murder, may in many cases be inferred from the defendant’s acts and
the circumstances of the crime.
[Citation.] ‘There is rarely
direct evidence of a defendant’s intent.
Such intent must usually be derived from all the circumstances of the
attempt, including the defendant’s actions. . . .’ †(People
v. Smith, supra, 37 Cal.4th at p. 741.)
“An inference of intent to kill drawn on evidence of a purposeful
shooting with lethal force under all the attendant circumstances can support a
conviction of attempted murder even without evidence of motive. [¶]
. . . [T]he act of purposefully
firing a lethal weapon at another human being at close range, without legal
excuse, generally gives rise to an inference that the shooter acted with
express malice. That the shooter had
no particular motive for shooting the victim is not dispositive, although
. . . where motive is shown, such evidence will usually be probative
of proof of intent to kill. Nor is the
circumstance that the bullet misses its mark or fails to prove lethal
dispositive – the very act of firing a weapon ‘ “in a manner that could
have inflicted a mortal wound had the bullet been on target†’ is sufficient
to support an inference of intent to kill.â€
(Id. at p. 742, italics
added.)
Section 664 provides: “Every person who attempts to commit any
crime, but fails, or is prevented or intercepted in its perpetration, shall be
punished where no provision is made by law for the punishment of those
attempts, as follows: [¶] (a) If the crime attempted is
. . . willful, deliberate, and premeditated murder, as defined
in Section 189, the person guilty of that attempt shall be punished by
imprisonment in the state prison for life with the possibility of parole.â€
b. Discussion.
argue the evidence only showed their intent to shoot at two houses in violation
of section 246 (shooting at an inhabited dwelling house), not an intent to
kill the occupants of those houses. Not
so. The evidence showed Johnson and
Cerda intended to kill the people who were inside the two houses. The evidence also showed each defendant was
guilty as an aider and abettor for the shootings carried out by the other
defendant under the natural and probable consequences doctrine.
(1) Express
intent to kill as to all attempted murder counts.
26-27, a murder case, discussed the following types of premeditation and
deliberation evidence
name="_ftnref3" title="">[3]: “The type of evidence which this court has found sufficient to
sustain a finding of premeditation and deliberation falls into three basic
categories: (1) facts about how and what
defendant did prior to the actual
killing which show that the defendant was engaged in activity directed toward,
and explicable as intended to result in, the killing – what may
activity; (2) facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury could reasonably
infer a ‘motive’ to kill the victim, which inference of motive, together with
facts of type (1) or (3), would in turn support an inference that the killing
was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing
of considerations’ rather than ‘mere unconsidered or rash impulse hastily
executed’ [Citation.]; (3) facts
about the nature of the killing from which the jury could infer that the
exacting that the defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way for a
‘reason’ which the jury can reasonably infer from facts of type (1) or
(2). [¶]
Analysis of the cases will show that this court sustains verdicts of first
degree murder typically when there is evidence of all three types and otherwise
requires at least extremely strong evidence of (1) or evidence of (2)
in conjunction with either (1) or (3).â€
In
this case, there was evidence of all three Anderson
factors: motive, planning and manner of
attempted killing. The evidence showed
defendants planned and carried out two purposeful drive-by shootings with
sufficient lethal force to have shot dead each attempted murder victim.
The
evidence showed motives for both shootings.
The defendants planned the attack on Katrina Place in retaliation for
the assault on Johnson, and they then attacked the Morning Circle house because
rival gang members lived there. As
Johnson acknowledges on appeal, he “and his companions were motivated by
considerations related to advancing their gang interests – fear, intimidation
and respect.â€
There
was planning evidence. (See, e.g.,
Cal.3d 57, 87, disapproved on other grounds by People v. Marshall (1990) 50 Cal.3d 907 [“that defendant
brought his loaded gun into the store and shortly thereafter used it to kill an
unarmed victim reasonably suggests that defendant considered the possibility of
murder in advanceâ€]; People v. Alcala (1984)
36 Cal.3d 604, 626 [“when one . . . brings along a deadly
weapon which he subsequently employs, it is reasonable to infer that he
considered the possibility of homicide from the outsetâ€].) In addition to the normal inference raised by
defendants’ simply having acquired the AK-47 for use in the shootings, the
evidence also showed they discussed a plan to retaliate for the assault on
Johnson by carrying out a drive-by shooting, retrieved the AK-47 from Cerda’s
house, drove back to Marco’s house where they talked about their plan some
more, and then drove to Katrina Place to put the plan into action. Contrary to Cerda’s suggestion that Pedro
only knew there was a plan to retaliate in some unspecified manner, Pedro told
police the defendants planned to “retaliate against the people†who had
assaulted Johnson by “shoot[ing] at that fucker.â€
After
Johnson shot at the Katrina Place house, the defendants decided to continue
their “mission†by driving to Morning Circle in order to carry out a second
drive-by shooting against the rival Val Verde Park gang. “The process of premeditation and
deliberation does not require any extended period of time. ‘The true test is not the duration of time as
much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly. . . .’ [Citations.]â€
(People v. Mayfield (1997) 14
Cal.4th 668, 767.)
And
finally, by firing the
AK-47 multiple times at the two houses, the defendants engaged in a
manner of attempted killing tending to show premeditation and
deliberation. (See People v. Silva (2001) 25 Cal.4th 345, 369 [“The manner of killing
– multiple shotgun wounds inflicted on an unarmed and defenseless victim who
posed no threat to defendant – is entirely consistent with a premeditated and
deliberate murder.â€]; People v. Vorise
(1999) 72 Cal.App.4th 312, 318-319 [premeditation and deliberation
established where evidence showed defendant calmly shot incapacitated victim in
chest twice at close range].) Johnson
and Cerda used a military assault rifle so powerful its bullets were known to
penetrate the walls of houses. At
Katrina Place, it appears almost all the shots did penetrate the house. Although only one bullet actually penetrated
the house at Morning Circle, the other bullets were found embedded in the
exterior stucco walls of the house.
There can be no doubting the potential lethality of defendants’ conduct.
In sum, the
evidence showed defendants intended to do more than just damage the two houses
or scare the occupants. Rather, the
evidence showed the defendants intended to kill the victims.
(2) Guilt
based on natural and probable consequences doctrine
incidents.
As
discussed, ante, the evidence showed
each defendant intended to kill both victims when he fired the AK-47 and when
he directly aided and abetted his codefendant’s firing of the weapon. In addition, however, the evidence also
showed that under the natural and probable consequences doctrine each defendant
was guilty of premeditated attempted murder for the shots fired by his
codefendant, even if the non-shooter’s only intent had been to violate
section 246 (shooting at an occupied dwelling house).
“ ‘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 reasonably
foreseeable. [Citation.]’ [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.]†(
920.)
In
Medina, the defendants planned to
beat up Barba, a rival gang member. But
after Barba managed to defend himself, one of the defendants pulled out a gun
and shot at Barba’s car as he and a passenger were driving away, killing
Barba. All three defendants were
convicted of first degree murder and premeditated attempted murder. Affirming the convictions,
natural and probable consequence of the plan to beat up the victim: “Given the gang-related purpose of the
initial assault and the fact that, despite being outnumbered, Barba exhibited
strength against three aggressors who could not avenge themselves in response
to what they considered disrespectful behavior by Barba, the jury could
reasonably have found that a person in defendants’ position (i.e., a gang
member) would have or should have known that retaliation was likely to occur
and that escalation of the confrontation to a deadly level was reasonably
foreseeable as Barba was retreating from the scene. [Citation.]â€
(People v. Medina, supra, 46
Cal.4th at pp. 922-923.) “[I]n the gang context, it was not necessary
for there to have been a prior discussion of or agreement to a shooting, or for
a gang member to have known a fellow gang member was
[Citation.]†(
The evidence here
is much stronger than in Medina
because Johnson and Cerda planned to use the AK-47 from the very
beginning. The jury could have
reasonably found each defendant intended to aid and abet the offense of
shooting at an occupied dwelling house in circumstances where it was reasonably
foreseeable his codefendant would instead commit attempted murder. (See, e.g., People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [murder and
attempted murder could be natural and probable consequences of shooting at
occupied building in non-gang retaliation shooting after altercation at party];
People v. Montes (1999) 74
Cal.App.4th 1050, 1054-1057 [attempted murder as natural and probable
consequence of simple assault and breach of the peace in gang context];
Cal.App.4th 721, 732-735 [murder as natural and probable consequence of
brandishing]; People v. Laster (1997)
52 Cal.App.4th 1450, 1465 [attempted murder as natural and probable
consequence of discharging firearm from a vehicle]; People v. Montano (1979) 96 Cal.App.3d 221, 225-227 [attempted
murder as natural and probable consequence of plan to beat up rival gang
members].)
In sum, there was overwhelming evidence
in support of the premeditated attempted murder convictions.
2.
Cerda’s natural and probable
consequences jury instructions were proper.
Cerda contends the jury instructions
improperly allowed his conviction for murder and attempted murder, on a natural
and probable consequences theory, without finding Johnson had committed
premeditated murder and that premeditated attempted murder had been
foreseeable. This claim is meritless.
a.
Background.
The trial court
instructed Cerda’s jury on the natural and probable consequences doctrine as
follows:
“Before you decide
whether the defendant is guilty of murder or attempted murder on a natural and
probable consequence theory, you must decide whether he is guilty of shooting
at an occupied house.
“To prove that the
defendant is guilty of murder or attempted murder, the People must prove that:
“The defendant is
guilty of shooting at an occupied house; during the commission of shooting at
an occupied house, the defendant, or co-participant in that offense, committed
the crime of murder or attempted murder; and under all of the circumstances, a
reasonable person in the defendant’s position would have known that the
commission of the murder or attempted murder was a natural and probable
consequence of the commission of shooting at an occupied house.
“A co-participant
in a crime is the perpetrator or anyone who aided and abetted the
perpetrator. It does not include a
victim or innocent by-stander.
“A natural and
probable consequence is one that a reasonable person would know is likely to
happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of the
circumstances established by the evidence.
If the murder or attempted murder was committed for a reason independent
of the common plan to commit shooting at an occupied house, then the commission
of murder or attempted murder was not a natural and probable consequence of
shooting at an occupied house.
“To decide whether
the crimes of murder or attempted murder were committed, please refer to the
separate instructions that I have given you.â€
b.
Discussion.
Cerda initially
claimed in his opening brief that “as to counts to which [he] was merely an
aider and abettor, counts 1 through 14, the NPC [natural and probable
consequences] theory applies only when there is another person who actually
committed a first degree murder or premeditated attempted murder with the
required mental state. The instructions
which merely alluded to ‘murder’ and attempted murder without mentioning
‘premeditation’ do not adequately convey to the jury that it cannot find an
aider and abettor guilty under an NPC theory unless it also determines that a
perpetrator committed first degree murder or premeditated attempted
murder. CALCRIM 403, as given in
this case, and in combination with the arguments of counsel, failed to make
this clear.â€
This contention
was based on People v. Hart (2009)
176 Cal.App.4th 662, but, as Cerda acknowledges in his
consequences doctrine as applied to the premeditation allegation under section
664(a)
attempted murder – not attempted premeditated murder – qualifies as the
nontarget offense to which the jury
must find foreseeability. Accordingly, once
the jury finds that an aider and abettor, in general or under the natural and
probable consequences doctrine, has committed an attempted murder, it
separately determines whether the attempted murder was willful, deliberate, and
premeditated. [¶] Under the natural and probable consequences
doctrine, there is no requirement that an aider and abettor reasonably foresee
an attempted premeditated murder as the natural and probable consequence of the
target offense. It is sufficient that
attempted murder is a reasonably foreseeable consequence of the crime aided and
abetted, and the attempted murder itself was committed willfully, deliberately
and with premeditation.†(
Cerda has
responded to the Favor opinion by
withdrawing only “the portion of his argument which pertains to premeditated
attempted murder. His argument is still
valid regarding the premeditated murder conviction and all attempted murder
convictions. Although the instructions
were not facially incorrect as to attempted murder, the prosecutor’s argument was wrong in stating that the aider
and abettor must foresee only the act engaged in by the perpetrator, rather
than the crime committed by the perpetrator.â€
Cerda argues: “The error is
prejudicial because the act of shooting at an inhabited dwelling may be a mere
assault, or an attempted murder, depending on the mental state of the shooter
and the likelihood of a murder occurring.
The NPC theory of liability as portrayed by the parties alleviated the
jury’s need to find that Cerda foresaw or should have foreseen a murder and
attempted murder by Johnson. It
lightened the prosecutor’s burden of proof.
[¶] As to the murder count, the
instructions which merely alluded to ‘murder’ and without mentioning
‘premeditation’ did not adequately convey to the jury that it cannot find an
aider and abettor guilty under an NPC theory unless it also determines that a
perpetrator committed premeditated first degree murder. CALCRIM No. 403, as given in this case,
and in combination with the arguments of counsel, failed to make this
clear. Nothing in Favor changes the analysis of this error.â€
Cerda complains
the prosecutor’s closing argument conflated the notions of “murder†and “mere
homicide†by telling the jury things like:
“We all know what murder is. It’s
very simple. Somebody does something and
another person dies. So that’s what
murder is.†Cerda also complains the
prosecutor improperly made no distinction between perpetrators and aiders and
abettors by arguing: “[L]et’s even say
that one of you at this point says . . . I don’t think they intended
to kill anyone. I think they were
just shooting into a home and somebody just happened to die.†Cerda argues this meant his “jury was not
called upon to make any determination about Johnson’s mental state. It was called upon only to determine whether
‘someone died’ as a result of Johnson’s shooting at the house.â€
We are not
persuaded by Cerda’s arguments.
“ ‘In
reviewing [a] purportedly erroneous instruction[], “we inquire ‘whether there
is a reasonable likelihood that the jury has applied the challenged instruction
in a way’ that violates the Constitution.â€
[Citation.] In conducting this
inquiry, we are mindful that “ ‘a single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the context of the
overall charge.’ â€
[Citations.]’ [Citation.] ‘Additionally, we must assume that jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given.’
[Citation.]†(
Cal.4th 959, 1028.)
Although the
natural and probable consequences instruction only named “murder†and
“attempted murder†as the charged non-target crimes, the final sentence of the
instruction told the jury: “To decide
whether the crimes of murder or attempted murder were committed, please refer
to the separate instructions that I have given you.†Those separate instructions explained the
elements of murder and then said: “If
you decide that the defendant has committed murder, you must decide whether it
is murder of the first or second degree.â€
Similarly, the jury was told that if it found a defendant guilty of
attempted murder, it then had to decide if “the People have proved the
additional allegation that the attempted murder was done willfully and with
premeditation and deliberation.†Hence,
the natural and probable consequence instructions provided the clarification
Cerda asserts was needed by referring the jury to other instructions.
As for the prosecutor’s
closing argument allegedly misleading the jury, Cerda’s record citations have
been taken out of context. Contrary to
Cerda’s suggestion, the prosecutor did argue the defendants intended to kill
people. The prosecutor told the
jury: “[Cerda and Johnson] intended to
kill somebody at that house. We know
that. There was motive for that. He was trying to get back at the people who
beat him up. LMS was there trying to
take down a house that for them portrayed 18th Streeters who had disrespected
their gang and one of their homies. They
were there to kill.†“The people who
went out that night armed with an AK-47 were going hunting. They were going hunting that night. Hunting for rivals. Hunting for people who had disrespected them
and their gang. [¶] . . . They were
hunting for humans beings that they could shoot and kill.â€
The prosecutor
made it clear he was not talking about an accidental death. For instance, the prosecutor’s
death of another and he did so with malice aforethought. [¶]
It’s not hard. It’s not a hard
concept. We all know what murder
is. It’s very simple. Somebody does something and another person
dies. So that’s what murder is.†The prosecutor went on to explain malice
aforethought and the concepts of express and implied malice. The prosecutor clearly told the jury it had
to find Johnson committed murder in order for Cerda to be guilty on an aiding
and abetting theory: “But in order to
get to that, did [Cerda] aid and abet Kyle Johnson in killing somebody, we have
to make sure . . . was there a
murder and did he aid and abet.â€
(Italics added.)
The prosecutor
also clearly argued first degree murder had been committed: “[T]his wasn’t an instantaneous decision
where the gun is there, somebody gets beat up at the party and somebody has a
gun in their waist band . . . and as soon as they get beat up, they
pull out a gun and shoot somebody.
That’s not the scenario. [¶] The scenario is . . . .
[someone] gets beat up. They go back to
a location, think about what’s going to happen. . . . [¶]
They are talking about it. They
are thinking about it. 20, 30 minutes,
an hour has gone by. They have also had
to get into their car, driven down to the location, circled the block. One of them pops up with the gun and starts
shooting. [¶] That is premeditation, deliberation, and
that’s done willfully. So, again, in
this case . . . murder of the first degree has been completed.â€
Hence, we conclude
that, viewed in context, the jury was not reasonably likely to have construed
the natural and probable consequences instructions in a manner that violated
Cerda’s rights.
3.
The CALCRIM No. 400
instruction does not mandate reversal.
Defendants contend their convictions
must be overturned because the trial court instructed the jury with a
superseded version of CALCRIM No. 400.
This claim is meritless.
a. Background.
The trial court instructed the jury with
CALCRIM No. 400, as follows: “A
person may be guilty of a crime in two ways:
One, he may have directly committed the crime. I will call that person the
perpetrator. Two, he may have aided and
abetted a perpetrator who directly committed the crime. A person is equally guilty of the crime
whether he committed it personally or aided and abetted the perpetrator who
committed it.†CALCRIM No. 400 has since been amended to eliminate the “equally
guilty†language and the final sentence now reads: “A person is guilty of a crime whether he or
she committed it personally or aided and abetted the perpetrator.â€
Johnson and Cerda
contend they were prejudiced by the “equally guilty†formulation in the old
version of CALCRIM No. 400 because it improperly tethered each defendant’s
culpability for premeditated attempted murder, as well as Cerda’s liability for
first degree murder, to the mental state of his codefendant.
b. Legal
principles.
“Because aiders
and abettors may be criminally liable for acts not their own, cases have
described their liability as ‘vicarious.’
[Citation.] This description is
accurate as far as it goes. But, as we
explain, the aider and abettor’s guilt for the intended crime is not entirely
vicarious. Rather, that guilt is based
on a combination of the direct perpetrator’s acts and the aider and abettor’s
Cal.4th 1111, 1117.) “Aider and
abettor liability is . . . vicarious only in the sense that
the aider and abettor is liable for another’s actions as well as that person’s
own actions. When a person ‘chooses to
become a part of the criminal activity of another, she says in essence, “your
acts are my acts . . . . †’ [Citation.]
But that person’s own acts are
also her acts for which she is also liable.
Moreover, that person’s mental state is her own; she is liable for her
mens rea, not the other person’s.†(
In
504, 507, we noted McCoy “held that
an aider and abettor may be found guilty of greater
homicide-related offenses than those the actual perpetrator committed. Extending that holding, we conclude that an
aider and abettor may be found guilty of lesser
homicide-related offenses than those the actual perpetrator
committed.†Similarly,
Cal.App.4th 1148, held: “Though
abettor could be guilty of a greater offense than the direct perpetrator, its
reasoning leads inexorably to the further conclusion that an aider and
abettor’s guilt may also be less than the perpetrator’s, if the aider and
abettor has a less culpable mental
state. [Citation.] Consequently, CALCRIM No. 400’s direction
that ‘[a] person is equally guilty of
the crime [of which the perpetrator is guilty] whether he or she committed it
personally or aided and abetted the perpetrator who committed it’
[citation], while generally correct in all but the most exceptional
circumstances, is misleading here and should have been modified.†(Id. at
pp. 1164-1165.)
c.
Discussion.
Based on
lessened the prosecution’s burden of proof by not requiring that each
defendant’s culpability be determined independently. We disagree.
(1) Natural
and probable consequences aspect of defendants’ claim.
In the first
place, we note defendants’ claim does not affect the aiding and abetting
instructions as they relate to the natural and probable consequences
doctrine. The same court that decided
197 Cal.App.4th 832, that “neither McCoy
nor Samaniego [nor, we would add,
consequences doctrine. Each reached its
conclusion only for aiders and abettors of a target offense. McCoy
expressly stated, ‘Nothing we say in this opinion necessarily applies to an
aider and abettor’s guilt of an unintended crime under the natural and probable
consequence doctrine.’ [Citation.] Its analysis was only to apply ‘when guilt
does not depend on the natural and probable consequences doctrine. . . .’ [Citation.]â€
(Id. at p. 851.)
natural and probable consequences doctrine for a nontarget, or unintended,
offense committed in the course of committing a target offense has a different
theoretical underpinning than aiding and abetting a target crime. Aider and abettor culpability for the target
offense is based upon the intent of the aider and abettor to assist the direct
perpetrator commit the target offense.
By its very nature, aider and abettor culpability under the natural and
probable consequences doctrine is not premised upon the intention of the aider
and abettor to commit the nontarget offense because the nontarget offense was
not intended at all. It imposes
vicarious liability for any offense committed by the direct perpetrator that is
a natural and probable consequence of the target offense. [Citation.]
Because the nontarget offense is unintended, the mens rea of the aider
and abettor with respect to that offense is irrelevant and culpability is
imposed simply because a reasonable person could have foreseen the commission
of the nontarget crime. It follows that
the aider and abettor will always be ‘equally guilty’ with the direct
perpetrator of an unintended crime that is the natural and probable consequence
of the intended crime. [¶] Consequently, the statement in CALCRIM former
No. 400 that ‘[a] person is equally
guilty of the crime [of which the perpetrator is guilty] whether he or
she committed it personally or aided and abetted the perpetrator who committed
it’ [citation], is a correct statement of the law when applied to natural and
probable consequence aider and abettor culpability . . . .†(People v.
Canizalez, supra, 197 Cal.App.4th at p. 852.)
Hence, defendants’
claim only relates to the prosecution theory that, as to the “non-shooting acts,â€
i.e., Cerda’s role at Katrina Place and Johnson’s role at Morning Circle, they
were directly aiding and abetting the other defendant’s firing of the
AK-47.
In
because the jury expressly asked the trial court if an aider and abettor’s
guilt could be less than the perpetrator’s.
Instead of correctly answering yes, the trial court simply reread the
standard aiding and abetting instructions.
We held: “[W]here, as here, the
jury asks the specific question whether an aider and abettor may be guilty of a
lesser offense, the proper answer is ‘yes,’ she can be. The trial court, however, by twice rereading
CALJIC No. 3.00 in response to the jury’s question, misinstructed the
jury.†(People v. Nero, supra, 181 Cal.App.4th at p. 518.)
As
outcome other than second degree murder for Brown. It expressly asked whether Brown, as the
aider and abettor, could ‘receive a higher or lesser degree of murder,
manslaughter, or innocence?’ When the
trial court’s reinstruction on reasonable doubt did not satisfy the jury, the
foreperson asked if, for example, they were to find defendant
the aider and abettor also be guilty of second degree murder ‘or could they be
held to the level of the manslaughter, or completely innocent?’ Then, when asked if the aider and abettor
could ‘bear less responsibility,’ the court only said the person could be found
not guilty. But the jury’s expressed
concern was not whether it could acquit the aider and abettor, but whether the
aider and abettor had to be found guilty of ‘the same level, murder two or
manslaughter, or could they be at a lower level?’ Without consulting counsel, the court reread,
twice, CALJIC No. 3.00, which states:
‘Each principal, regardless of the extent or manner of participation, is
equally guilty.’ (Italics added.) The jurors then indicated that the
instruction answered their question. The next day they found both defendants
guilty of second degree murder. [¶] It is therefore clear that the jury was
considering whether to impose a lesser degree or offense on the aider and
abettor. Notwithstanding that other
instructions might have given them that option, there is a reasonable possibility
that the trial court’s response to their questions improperly foreclosed
it.†(People v. Nero, supra, 181 Cal.App.4th at pp. 519-520.)
Johnson argues
something similar happened in this case, as shown by a series of notes the jury
sent out to the trial court during deliberations. However, as Johnson concedes, these notes did
not expressly ask if an aider and abettor had to be found guilty of the same
degree of attempted murder as the direct perpetrator.
In addition, any
potential confusion was necessarily resolved by other instructions. Under CALCRIM No. 401 (aiding and
abetting intended crimes), the People had to prove: Cerda committed the cr
| Description | Defendants and appellants, Peter Juan Cerda and Kyle Allin Johnson, appeal their convictions for first degree murder (Cerda only), second degree murder (Johnson only), and 23 counts of premeditated attempted murder, with gang and firearm use enhancements (Pen. Code, §§ 187, 664/187, 186.22, 12022.53).[1] Cerda was sentenced to state prison for a term of 816 years to life. Johnson was sentenced to state prison for a term of 410 years to life. The judgments are affirmed in part, reversed in part, and remanded with directions as to defendant Johnson’s sentencing. |
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