P. v. Ebaniz

Filed 9/28/06 P. v. Ebaniz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Patrick O'Hara, Judge.

Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In his first trial, a jury convicted appellant Tyrone Ebaniz of first degree murder (Pen. Code,^[1] § 187), felony false imprisonment (§ 236, subd. (a)), torture (§ 206), and kidnapping (§ 207). The jury further found true allegations that a principal was armed with a handgun and an assault rifle during commission of the crimes (§ 12022, subd. (a)(2)), and that appellant personally used a deadly or dangerous weapon during the commission of torture (§ 12022, subd. (b)). Appellant was sentenced to a total term of 34 years to life in prison. On appeal, we reversed the murder conviction due to instructional error (specifically, the inclusion of non-§ 189 offenses in CALJIC No. 8.26 [first degree felony-murder - in pursuance of a conspiracy]), afforded the district attorney the opportunity to retry the murder count, and affirmed the remaining convictions. (People v. Ebaniz (Sept. 21, 2004, F042769) [nonpub. opn.].)^[2]

The district attorney elected to retry appellant on the reversed count. A jury again convicted appellant of first degree murder, and found true allegations that a principal was personally armed with an assault rifle and a handgun during commission of the crime. Appellant was sentenced to a nine-year term on count 4 (kidnapping) and the attendant enhancements, a concurrent two-year term on count 2 (false imprisonment), a consecutive term of 25 years to life in prison on count 1 (murder), and a concurrent term of life plus one year on count 3 (torture). He now appeals, challenging both his murder conviction and a portion of his sentence. For the reasons that follow, we conclude the murder conviction must again be reversed.

FACTS

Seventeen-year-old Eric Jones did not come home on the night of January 24, 2001. The next morning, his bound, nude body was found near Avenue 16 and Highway 43 in Tulare County. Nine 9-millimeter shell casings were located nearby, and five bullets were dug out of the ground underneath the body. There were bullet holes in Jones’s back and a wooden stick protruding from his anus. Duct tape was wrapped around his face and head, and his hands and feet were taped together behind him. There were blue markings on his back.

An autopsy revealed nine entrance wounds to Jones’s right back, with eight corresponding exit wounds to the right chest. One slug was recovered inside the chest. Bruising indicated Jones was alive when the wounds were inflicted. Several of the entrance wounds showed prominent burning, and two had evidence of tattooing, indicating close-range shots. There was also a single gunshot wound to the right cheek area. The face was bruised, and there was evidence of blunt force trauma to the head. There was a superficial puncture wound on Jones’s back. The skin of the anus was abraded, and the rectum showed areas of soft tissue hemorrhage or bruising. The bruising extended four or five inches into the body. No injuries consistent with electrocution were noted; however, depending upon the amount of electrical current, electrocution could have occurred without leaving physical evidence. The cause of death was exsanguination due to multiple gunshot wounds to the back. It would have taken several minutes for death to occur after the gunshot wounds were inflicted.

Investigation focused on a group of Jones’s acquaintances, who, like Jones, lived in or near Delano: Gerardo (“Jerry”) Zavala, who drove a white Mitsubishi GT 3000; Keith Seriales, who drove a white Jaguar; Jorge (“George” or “Coce”) Vidal, who was often seen in Seriales’s company; Daniel Portugal; Juan Soto; and his brother Gerardo (“Lalo”) Soto, who drove a green Intrepid. These men frequently spent time together, and appellant sometimes joined them. Seriales, Vidal, and Zavala were in their late 20’s or 30’s, while appellant was 16 at the time Jones was killed.

Jones and appellant were best friends, although Jones had a reputation as a thief. Both were at the home of appellant’s sister, Antionette Cota, the night Jones was killed. According to Cota, they left separately.

Valerie Ayala, appellant’s cousin, lived with appellant and their grandmother. On the night Jones was killed, she arrived home around 10:30 p.m. Appellant was not there. Ayala saw appellant sometime the next morning.^[3] Instead of following his normal routine, he locked himself in his room for most of the day and did not want to talk to her. He did not respond when she asked where he had been the night before. When informed later that day that Jones was dead, appellant appeared surprised by the news, although he was quiet and not acting like himself.

Detective Arnold and Sergeant Logue, then Sergeant Logue alone, interviewed appellant on the evening of January 26.^[4] Appellant initially related that he was at his grandmother’s house when Gerardo Soto, whom appellant knew as Lalo, showed up.^[5] They sat in Gerardo Soto’s green Intrepid for about 20 minutes, then, sometime after 6:00 p.m., Jones arrived and got into the car. Jones asked where all “the shit” was at, and Gerardo Soto replied that it was at the house. Jones said he wanted to go, so appellant agreed and Gerardo Soto drove them to the house.^[6] Once there, they went inside the garage. Two men were working on a car. Someone turned up a radio and offered Jones and appellant a beer. They drank some beer, then Zavala started to talk to Jones about buying a gun. It looked to appellant as if Zavala was just waiting to beat Jones up, because Zavala then struck Jones in the face with his fist. Jones fell to the floor. Gerardo Soto said something to Portugal in Spanish, then they started toward Jones’s location. Appellant tried to run out, but Portugal pointed an AK-47 at him, so appellant raised his hands and got against the wall. One of the other men told Portugal no, gave him a little slap, and took the gun, then told appellant to just do what he said. Zavala and Portugal then threw Jones on the floor in a location that appellant was unable to see. While this was going on, Juan Soto was going back and forth between the garage and the house.

Appellant, who was on his knees against the wall, then heard tape. Zavala and Portugal bound Jones with duct tape. Juan Soto brought Gerardo Soto a phone; Gerardo Soto dialed a number and then gave the phone to someone else. Gerardo Soto told appellant that nothing would happen if he just did what they said. Although appellant could not see what was going on, he could hear the men hitting Jones, who was in pain. One of the men said to wait, but Gerardo Soto said no, that appellant was cool. He told appellant to get in the car. As appellant complied, he saw Jones with his hands taped behind his back. Gerardo Soto got into the driver’s seat and told appellant to just do what he said. He said something in Spanish, which appellant did not understand, to the other man, then drove appellant home and told him not to say anything, or he would get appellant and his family. Appellant knew it was not Gerardo Soto that would get him, but the other man that someone telephoned to come over.

As the interview progressed, appellant related that, during the time he could not see Jones, he could hear Jones saying he did not want to get down and the men all ordering him down. Appellant then heard shuffling and what sounded like kicking. After that, Jones lay down and appellant heard the tape sounds. When Gerardo Soto told appellant to come on and appellant obeyed, he saw Jones lying on his stomach with appellant’s jacket in his hands. There was tape around his wrists.

After reiterating that Gerardo Soto drove appellant directly home, appellant admitted that he was still inside when Seriales and Vidal came in. Vidal picked Jones up and started hitting him. Appellant looked away, but could hear Vidal striking Jones hard with his fist, appellant believed in the face. Vidal struck Jones many times. Appellant was still against the wall because the others had the gun. Jones was crying that he did not do anything.

Vidal then told appellant to go over there, but appellant refused. He heard Vidal say, “‘remember the screwdriver,” but appellant did not know what he was talking about. He knew there was a screwdriver somewhere in the garage. Appellant turned because he did not want to get stabbed himself, then heard Jones being stabbed. Vidal again told appellant to come over, but appellant refused. Vidal insisted, and then told appellant to stick Jones, who was on the floor, moaning. When appellant again refused, Vidal ordered him to kick Jones. This time when appellant refused, Vidal hit him in the mouth, and appellant fell to the floor next to Jones.^[7] Vidal warned him against saying anything, then, when appellant promised he would not, Vidal told appellant to get “over there” and not say anything or Vidal would come after his family and sister and would kill appellant.

Gerardo Soto then took appellant into the house. He warned appellant not to say anything, because Vidal had a gun and would kill him. Gerardo Soto had appellant sit on the couch. Appellant, who was shaking, sat there for about 30 minutes. He could hear Jones crying and screaming. Someone then said, “‘Let’s go,’” and told appellant to come on. Appellant then got into a white car with Gerardo Soto, and the others drove out in the green car. Appellant did not know where Jones was.

They drove toward Allensworth, to a field past the prison. Gerardo Soto pulled up behind the others and turned off the car’s lights. Appellant stayed in the car; he could see Jones, who appeared to be naked, lying on the ground. Vidal started shooting, so appellant put his head down and covered his ears, then somebody said let’s go. Everyone got in the car and drove off. Gerardo Soto dropped appellant off at his house and warned him not to say anything.

Under further questioning, appellant related that, when Gerardo Soto took him into the house, he told appellant to do whatever Vidal told him to do, or Vidal would shoot him. Gerardo Soto then told appellant to go back in the garage and watch what they were going to do to Jones. Appellant obeyed and saw that Jones’s pants were off. Appellant started to walk away, but Vidal ordered him back and told him to look. Vidal was laughing as he put a stick in Jones’s anus. The stick was on the floor, and Vidal told appellant to use it on Jones. Appellant picked it up, but said he could not do it. He started to walk away, but Vidal said he had better do it. Appellant again refused, then Vidal took the stick from him and again inserted it into Jones’s anus. He ordered appellant to do it, and appellant wiggled it a little with his hand, then refused to do any more. Vidal then moved it some more. Everyone was laughing, but appellant turned to the side and threw up. He then went into the house and asked for something to drink. He was given juice.

When appellant next saw Jones, Jones was in the trunk of the car. Vidal told Jones to move his legs, which Jones did, then Vidal shut the trunk and told appellant to get in the car. Appellant obeyed, thinking they were going to drive him home. They went to the country, however. They wanted him to watch because they said that if they were arrested, they would say he was doing the same things to Jones.

Appellant related that Seriales wrote “Pepe’s Bitch” on Jones’s back with a blue marker while Jones was on the floor of the garage. The marker came from somewhere in the house. Pepe was not present; appellant believed they wrote the name because Pepe used to “kick it” with Jones.

As the interview continued, appellant related that, when Seriales and Vidal first arrived and were beating Jones, Jones asked what he had done. One of the men asked if Jones wanted his grandmother to live. Jones begged them not to kill him, but the man said, “‘You’re already dead.’” The man asked again if Jones wanted his grandmother to live and, when Jones said yes, told him to do the right thing. He then asked Jones who broke in there. Jones said he did not know what they were talking about. The man hit him some more and asked the question again. Jones answered, “‘Pepe and somebody.’” Vidal was the one who accused Jones of breaking into the house. Appellant also related that Jones was not shot with the AK-47, but instead appellant believed a handgun was used. He had seen Vidal holding one.

Appellant still insisted he did not know the names of those involved, except for “Lalo.” He also admitted that he had written “Pepe” on Jones’s back. The others made him. When he wrote the word sloppily, Seriales took the marker from him and wrote “bitch.” Everyone except for appellant and Juan Soto, who did not do anything to Jones, had on white cotton gloves. Appellant related that Zavala and Portugal were the ones who tied Jones up, and that Juan Soto made the call on the cell phone. He also said that Portugal struck Jones. At one point, it sounded like Jones had something in his mouth, but appellant never saw anything over his head. When he wrote on Jones’s back, however, it looked like a burgundy pillowcase over his head. Appellant did not know what happened to Jones’s clothes; he thought they might have been put inside black trash bags that were there, but he was not sure. He thought the others might have burned the clothes, because he heard Vidal say not to leave any and that they were going to burn everything. Under further questioning, appellant related that the others made him participate in taping Jones, but he did it too slowly. They gave him a glove, but it got stuck on the tape. Seriales then said to give him (Seriales) the gloves.

After a break, the interview resumed on the fourth tape. At this point, Logue advised appellant of his Miranda rights,^[8] which appellant waived. Appellant then related that, around dusk on January 24, he was waiting on the sidewalk by his grandmother’s house for Jones to come by. Jones had telephoned around 7:00 p.m. and said he was going to come over to “kick back.” While appellant was waiting, he saw Gerardo Soto in a white car driven by Zavala. When they saw appellant, they stopped. Gerardo Soto told appellant to get in the car, then they sat and talked for a while. Eventually, Jones arrived.

At this point, appellant asked to stop the interview and insisted he had not been lying to Logue before. When Logue accused appellant of omitting things and suggested he had helped tape Jones, appellant replied, “Well you got an AK to your head, what are you gonna do? You tape him or don’t” When Logue asked whether appellant was now telling him that a gun was held to his head, appellant responded, “Well not to my head but they’re they’re feet away from me just pointing it at me saying you’re gonna do it or just basically you’re gonna get shot.” After further discussion, appellant asked to speak to his grandparents, and the interview was terminated.

The interview resumed a little over an hour later, after appellant had a chance to talk to his grandmother and cousin. Logue readvised appellant of his Miranda rights, and appellant again waived them.^[9] Appellant related that he was in the white car for about 20 minutes before Jones arrived. Jones began talking to everyone, as he knew Zavala. After greeting appellant, he asked where all “the shit” was at. Appellant asked how much money he had, and Jones replied that he had $10. Appellant moved his head to indicate that Jones should get in the car, which Jones did. They then headed for the Soto residence. During the ride, Jones told Zavala that he had a handgun for sale. They haggled over the price until they reached the house.

Gerardo Soto went into the house while the others waited on the porch. The garage door opened, and someone backed the car into the garage.^[10] The garage door then shut. Gerardo Soto told them to come in, and they went into the house and then immediately into the garage. Portugal was already there, as was Juan Soto, whose residence it was. Jones and appellant sat down, and Jones drank a beer. He and Zavala were still discussing the price of the gun when Zavala suddenly punched Jones. Jones fell over, and Zavala struck him several more times. Appellant started to run, but Portugal pulled an AK-47 out of the trunk of the white car, pointed it at appellant, and told him not to move. Appellant got against the wall, then Gerardo Soto struck Portugal and said something like, “‘Give me the gun stupid. Not him.’” Gerardo Soto told Portugal to tie Jones up. He was pointing the gun at Jones, then he pointed it back at appellant and said just to do what he said. Appellant agreed.

Portugal and Zavala began binding Jones with an orange extension cord. While this was going on, Juan Soto kept going in and out of the garage. Gerardo Soto had the AK-47, and he said something to his brother. Gerardo Soto gave a cell phone to Juan Soto, who dialed a number and then handed the phone back. Gerardo Soto talked to someone in Spanish, which appellant did not understand, then again told appellant just to do what they said.

About five minutes later, Seriales and Vidal entered the garage. Vidal immediately walked around the car, looked down at Jones, said, “‘You want to steal my shit nigger?’” and began punching him really hard with his fist. Jones was crying and asking what he had done. Vidal demanded to know why Jones tried to break into Vidal’s car, but Jones said it was not him. Vidal, who continued to strike Jones, responded that he had seen Jones. Seriales also said it was Jones, and asked if he thought they would not find out. Vidal then asked Gerardo Soto what his brother said, and Gerardo Soto asked Juan Soto whether it was him. Juan Soto replied that he thought so, and Gerardo Soto then said to Jones that it was him.

Vidal began hitting Jones again. Vidal said he could not find the screwdriver Jones used and asked what Jones did with it. Jones continued to cry and insist that he had not done anything. Vidal then saw a long screwdriver inside the white car that had its hood open. Vidal bent down and appellant heard what he believed to be a stabbing with the screwdriver. Vidal then straightened up and told appellant to come over. When appellant complied, Vidal ordered him to “stick” Jones. Appellant refused, saying he could not. Vidal repeated the order, but appellant again refused. Vidal then told appellant to kick Jones, but appellant refused to do this as well. Vidal then struck appellant in the mouth. Appellant fell to the floor next to Jones, although he did not experience pain, swelling, or bleeding. When he got back up, Vidal warned him against saying anything.

Gerardo Soto had appellant go inside the house and sit on the couch. Juan Soto was there, looking shocked. Seriales then came in and said, “‘We’re going to Mexico man. You think we give a shit about we kill his ass.’” Appellant was wondering whether he should try to run, but Seriales told him not to say anything, that he knew his father. Seriales then returned to the garage. Gerardo Soto then told appellant to come back in the garage, that “he” wanted appellant to do “it,” too. When appellant rose, Gerardo Soto told him, “‘Don’t mess with him man. He’ll shoot your ass’”

Appellant entered the garage to find Jones lying on the floor. He was completely naked, and his hands and legs were taped up. A stick had been inserted in his anus. Vidal told appellant, “‘Do it.’” Appellant refused, but Vidal insisted. Portugal was nearby, holding the AK-47. They stepped toward appellant, and Vidal again gave the order. Appellant stepped over to Jones and moved the stick once. He felt like he was going to throw up and he tried to let go, but Vidal told him to do it hard. Vidal then pushed him to the side. Appellant thought they were going to shoot him, so he turned around. Vidal was moving the stick, hard, and appellant ran to the side and threw up. Everyone started laughing. Appellant got dizzy, so he went back inside the house and asked for something to drink. Juan Soto gave him some juice, then Vidal came in and told him not to say anything or Vidal would kill him and his family and his sister.

Seriales then suggested putting “Pepe’s bitch” on Jones’s back. They told Juan Soto to get a marker. He retrieved a blue marker from a bedroom, then went into the garage. Gerardo then came in and told appellant that they wanted him. Vidal told appellant that he was going to take part, too, so that if they were arrested, appellant also would be arrested. Seriales looked like he wanted to do the writing, but Vidal said to give appellant the marker. Appellant took the marker and wrote “Pepe,” and Vidal told him to stop shaking. When appellant could not stop, Seriales grabbed the marker and wrote “bitch.”

Feeling like he would vomit again, appellant went into the living room to get more juice. Vidal told him to come on, so appellant went back into the garage. There, he saw Jones in the trunk of the green car. He was facing up, and his knees prevented the trunk from closing. When Vidal told him to turn over, Jones turned the best he could, and Vidal closed the trunk. Appellant, Seriales, and Zavala then got into Seriales’s white Jaguar, while Gerardo Soto and Vidal got into the green Intrepid. Juan Soto and Portugal remained at the house.

The white car followed the green car, which was driven by Gerardo Soto. They went toward the prison, then turned on a road going toward Allensworth. Seriales ended up having to make a U-turn, and they lost the others for a few minutes. By the time they pulled up behind the green car, appellant could see Jones lying on the ground. Gerardo Soto and Vidal were both out of the car. Appellant saw Vidal shoot Jones.

Everyone then returned to the cars and drove on back to the house. Once there, Vidal warned appellant not to say anything or he (Vidal) would get appellant’s whole family. Vidal then said that appellant was coming with him, and they left with Zavala. The Soto brothers and Portugal remained at Juan Soto’s house.

Zavala, Vidal, and appellant went to some house; appellant was unsure where. They sat in a truck in a small shed in the back. Gerardo Soto arrived, and Zavala went somewhere. Appellant asked if he could go back to town with Gerardo Soto, who agreed to give him a ride. Vidal said nothing and, in the morning, Gerardo Soto and Vidal took appellant home. (This completed appellant’s statement.)

Early on January 27, appellant took Detective Arnold to various locations to look for other potential suspects. Appellant pointed out Zavala’s residence, as well as that of Juan Soto. A teal green Dodge Intrepid, registered to Gerardo Soto, was parked in the garage. The trunk of the Intrepid contained various items, including a small amount of a white powdery substance. There was a smudge of white powder on the shoulder of Jones’s body when it was found. Appellant’s fingerprints were found on various exterior portions of the Intrepid. Portugal’s prints were also found on the exterior of the vehicle. Fingerprints belonging to Vidal and Gerardo Soto were found on beer cans in the garage. There were white stains on the garage floor, as if something had been moved in a scrubbing motion, and also some spots of blood that DNA analysis revealed were consistent with Jones’s genetic profile.^[11] Also found in the garage were some gloves, a bottle of bleach with scissors stuck in the opening on top and a blue Dry Erase marker floating inside, and a squeegee missing its handle.

Zavala and Seriales were arrested later that day. Vidal was arrested at a relative’s house in Bakersfield early on January 28. An SKS 7.62-millimeter rifle, which is very similar to an AK-47, was located in a yard behind the residence in which Vidal was found. Two 9-millimeter handguns were found on top of a shed in another adjoining yard. One of the nine-millimeter pistols was positively determined to have fired the shell casings found near Jones’s body. The bullets recovered from the scene and from Jones’s body could have been fired by either of the pistols.

Detective Arnold had appellant (who was not arrested at the time) placed in a group home in Bakersfield due to safety concerns. However, appellant subsequently ran away from the group home and was not located until January 30, 2002, when he was found in Delano. The Soto brothers fled to Mexico and, as of the time of appellant’s trial, were still at large.

Portugal was arrested in Lodi on February 4, 2002, after which he was interviewed by Tulare County Sheriff’s Sergeant Skiles.^[12] In his statement, Portugal related that he first met Jones in approximately 1997, when the two had a dispute over a dog. Later, appellant, Portugal, and Gerardo Soto would go to Jones’s house because Jones would sell stolen stereos to Gerardo Soto.

A few weeks before Jones was killed, Vidal told Portugal that Jones wanted to steal Vidal’s car stereo. Vidal was angry and said he had thought that he and Jones were friends. The Soto brothers were present when Vidal said this. Vidal told Portugal that Jones later told a lady who worked at a gas station that Vidal was just a talker, and that he would talk like he was going to do something, but then would not do it. The lady informed Vidal of this conversation, which made Vidal very angry. Sometime later, Jones and someone named Pepe broke into Juan Soto’s house and stole some things. Vidal said he saw them walking down the street. Juan Soto was angry and wanted his property back. He and Vidal, who was also angry, went to Pepe’s house to look for him, but Pepe would not come outside.

The Soto brothers and Zavala were angry over the burglary and decided to beat Jones up as punishment. Two days before Jones was murdered, they and appellant set up a plot. Juan Soto told Portugal that he was talking to Gerardo Soto and Zavala, and that appellant was present. Juan Soto said the men called appellant. Appellant was going to bring Jones, who was now wearing a leg monitor and was not supposed to leave home, out of his house by suggesting they go somewhere, then Zavala and Gerardo Soto were going to pick them up. According to Portugal, the plan was simply to beat Jones up.

Around noon on the day of Jones’s murder, Portugal went with Vidal and Juan Soto to buy more gloves because the two pairs Juan Soto already had were not enough.^[13] Portugal also bought gray tape. Vidal then left. The Soto brothers picked Portugal up at his home around 6:00 or 7:00 p.m. When Juan Soto asked if he was ready, Portugal said he was, meaning with respect to the plan to beat up Jones. Then they all went to Juan Soto’s house. They telephoned appellant so that he could get Jones out of Jones’s house, then Zavala (who arrived at Juan Soto’s house at about the same time as Portugal) and Gerardo Soto left to go to the store. Later, Zavala told Portugal that they had driven past Jones’s house and had seen appellant with Jones. Jones did not want to get inside the Intrepid and went back inside the house. The men returned to Juan Soto’s residence and put the Intrepid inside the garage, next to Juan Soto’s white Beretta. Gerardo Soto then telephoned appellant, and Gerardo Soto and Zavala went to pick Jones up in Zavala’s Mitsubishi.

Portugal related that, after appellant telephoned Jones, Jones cut off his monitor. Zavala and Gerardo Soto then went and got Jones and appellant in the Mitsubishi, and took them to Juan Soto’s house. Portugal and the others were ready inside the garage, although Portugal denied knowing Jones would be murdered. He thought the others were just going to beat him up or hit him and let him go. He admitted, however, that the stereo in the Intrepid had already been turned on.

Gerardo Soto invited Jones into the garage to smoke drugs. Jones seemed reluctant, but then agreed. Jones went inside the garage and began smoking methamphetamine and drinking a beer. Zavala and Gerardo Soto then began punching him in the face so they could put him on the ground. Appellant was present; he started to run, but Portugal picked up an AK-47 and told him not to move.^[14] Appellant did not move after that, but went back when Portugal told him to. Portugal put the gun on the floor, then went to help Gerardo Soto and Zavala tie Jones up with an extension cord. Jones was on his stomach on the floor, and Portugal held his hands behind his back while Gerardo Soto and Zavala tied them. They then bent his legs and used the same extension cord to tie his feet to his hands. Jones tried to get loose and told them to let him go, although Portugal could not hear his exact words because of the car stereo. Gerardo Soto told him to shut up, then retrieved the AK-47, pointed it at him, and told him not to move. He said he was going to shoot Jones, who then stopped talking because Gerardo Soto put a rag in his mouth. During this time, appellant was shaking with fear.

Gerardo Soto and Zavala then went inside the house to telephone Vidal, who had not been aware of the plan. Juan Soto came into the garage for the first time since Jones’s arrival. Portugal and appellant talked; appellant asked to be let go, but Portugal said he did not know and that appellant should tell the others. Portugal would not let appellant leave because the others had not told him yet that he could let appellant go.

Zavala and Gerardo Soto returned to the garage, and Juan Soto went back into the house. Portugal also went inside the house. Juan Soto’s wife asked him what they were doing to Jones and why he was screaming, but Portugal did not tell her. Juan Soto then told him to go back with the others.

Vidal and Seriales arrived, and Vidal began punching Jones in the face with both fists. He also stabbed Jones several times with a screwdriver he said Jones had left in Vidal’s car when he tried to steal the stereo. Gerardo Soto, Zavala, Seriales, Portugal, and Vidal all put on gloves (appellant did not have any), then Portugal put tape on Jones’s face. Portugal, Vidal, and Seriales held Jones while Gerardo Soto removed the extension cord, then Portugal taped Jones’s hands. It was Vidal’s idea to do that. Seriales put more tape on Jones’s face, and taped his feet together and then to his hands, just as the extension cord had been tied. Jones’s whole face was taped up, with the tape wrapped around his head. His face was swollen, and he was bleeding from the nose and from the stab wound.

Vidal and Seriales took appellant into the house. Juan Soto came back into the garage. By this time, Jones had been there roughly two hours. Portugal and Juan Soto went inside the house. Seriales was cleaning a gun. Vidal had returned to the garage; he was cleaning some bullets. Appellant and the others, except for Juan Soto, went back into the garage.

At some point, Juan Soto said not to kill Jones there, but to take him somewhere else. Portugal said that the car did not have any gas. Zavala gave Portugal a ride to the latter’s house to get gas to put in Gerardo Soto’s green Intrepid. When they returned and gassed up the car, Portugal discovered that Jones’s clothes had been removed and he had a stick, like a broom handle or something similar, protruding from his anus. Seriales and the others were kicking it and pushing it in deeper. Appellant, who was scared, did not want to do this, but Vidal insisted. Eventually, everyone but Juan Soto, who was still inside the house, kicked the stick. Appellant and Portugal only did it once. The others did it several times.

Vidal then suggested putting electricity on Jones. Using the extension cord with which Jones had been bound, he wrapped wires around Jones’s fingers. He plugged in the cord one time, causing Jones to shake. Vidal then put water on the garage floor so that Jones was lying in it, and told Portugal to do it. Portugal complied, then Gerardo Soto plugged in the cord, and then Vidal did it again. Jones shook every time. Everyone was laughing except for Portugal and appellant, who was scared. Jones was screaming and moaning through the tape. Vidal took a marker and wrote “Pepe something” on Jones’s back.

Zavala and Seriales then put Jones in the trunk of the Intrepid. This was Vidal’s idea. Juan Soto came into the garage while the trunk was still open and began cleaning up the blood and the mess. He used soap and bleach, and a mop and Jones’s clothes. Someone closed the trunk, and Juan Soto opened the garage. Gerardo Soto drove the Intrepid, which also contained Portugal and Vidal. Seriales followed in his Jaguar, which also contained Zavala and appellant. Juan Soto remained at the house, cleaning. Portugal believed they were going to leave Jones somewhere and that Vidal would probably use the gun to scare him, but denied knowing Jones would be murdered.

They drove down Highway 43, then, at Vidal’s direction, stopped out in the country. The vehicle headlights were turned off, then everyone got out of the cars. Zavala, Gerardo Soto, and Seriales removed Jones from the trunk and threw him in the dirt at the side of the road. Vidal then came out with a gun and started “blasting” Jones. He threatened to kill appellant, but Gerardo Soto said that he had already talked to appellant and that appellant was not going to say anything. Vidal then told appellant that if appellant said something, Vidal would kill him, his grandmother, and his girlfriend.

Everyone then got back in the cars and returned to the house, where Juan Soto was almost finished cleaning. This was around midnight. Vidal instructed Juan Soto to tell his wife that if she said anything, Vidal would kill her. Vidal also told everyone else that he would kill anyone who snitched.

Portugal walked home, arriving around 12:30 a.m. Appellant asked to be allowed to go home, but Vidal said no, he was coming with Vidal. Vidal then took him somewhere. The next day, Juan Soto told Portugal that he had burned the gloves. (This completed Portugal’s statement.)

DISCUSSION

I

DURESS

The prosecutor proceeded on the premise that appellant, while not the actual killer, nonetheless was guilty of first degree murder based on principles of aiding and abetting and conspiracy liability, coupled with the natural and probable consequences doctrine. To this end, jurors were instructed on those principles, along with the five theories of first degree murder propounded by the prosecutor: (1) murder in furtherance of conspiracy to torture, which the prosecutor termed “murder by conspiracy”; (2) murder by means of lying in wait; (3) murder by means of torture; (4) felony murder based on kidnapping; and (5) premeditated murder.^[15]

The defense relied in large part on evidence (especially Portugal’s statement, which was not presented at appellant’s first trial) suggesting appellant participated in events under duress.^[16] As a result, the trial court instructed the jury in the language of CALJIC No. 4.40 (duress - threats and menaces).^[17] In addition, the court gave special instructions B and E, which the parties agreed should be given.^[18] It refused, however, to give special instructions F and G, which were requested by the defense and given in the first trial.^[19] It agreed with the prosecutor’s argument that murder by means of torture was not felony murder, but instead described a method of committing murder, explaining: “The murder by torture, the elements of murder by torture are one, one person murdered another person, so that’s the first thing that the jury is to find, that there is an intentional killing of another human being with malice. Duress, obviously, is not a defense to that.

And then once that’s found, we have an aiding and abetting theory whether a perpetrator commits torture; and three, whether that was the cause of the victim’s death. So I believe that direction [sic] is not a defense to murder by torture because as counsel indicates, that’s just a method of what the murder was.

So once you find a murder premeditated, deliberate, with malice aforethought, then if you find torture was used which caused the death, that just means you don’t have to determine whether there was premeditation or deliberation. It just is first degree murder. So I’m not going to give F and G.”

Appellant now claims the trial court erred. While we find no error with respect to the theory of murder by means of torture, we agree that jurors should have been permitted to consider duress with respect to the theory of murder in furtherance of a conspiracy to torture.

“All persons are capable of committing crimes except those belonging to the following classes:

Six - Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.” (§ 26.) “In other words, the defense of duress negates the intent or capacity to commit the crime charged. ‘ The unlawful acts of the person under duress are attributed to the coercing party who supplies the requisite mens rea and is liable for the crime. [Citation.]’ [Citation.]” (People v. Petznick (2003) 114 Cal.App.4th 663, 676-677.)

It is settled that “duress is not a defense to any form of murder.” (People v. Anderson (2002) 28 Cal.4th 767, 780.) “Moreover, because duress cannot, as a matter of law, negate the intent, malice or premeditation elements of a first degree murder, [the California Supreme Court has] further reject[ed the] argument that duress could negate the requisite intent for one charged with aiding and abetting a first degree murder. [Citation.]” (People v. Vieira (2005) 35 Cal.4th 264, 290.) Our state’s high court has recognized a single exception: “[D]uress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.]” (People v. Anderson, supra, at p. 784.) “Liability for first degree murder based on a felony-murder theory is proper when the defendant kills in the commission of [one of the felonies] listed in section 189.” (People v. Lewis (2001) 25 Cal.4th 610, 642.) “The mental state required is simply the specific intent to commit the underlying felony .” (People v. Cavitt (2004) 33 Cal.4th 187, 197.) “If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.” (People v. Anderson, supra, at p. 784.)

In light of the foregoing, the instructions given in the present case accurately informed jurors of the relationship between the defense of duress and the proffered prosecution theories of premeditated murder, murder by means of lying in wait, and felony murder based on kidnapping. (People v. Vieira, supra, 35 Cal.4th at p. 290; People v. Anderson, supra, 28 Cal.4th at pp. 780, 784.) As we shall explain, the trial court also properly precluded application of duress to murder by means of torture, which, although frequently referred to as torture-murder, is distinct from torture-felony-murder.

“Murder is the unlawful killing of a human being with malice aforethought.” (§ 187, subd. (a).) “All murder which is perpetrated by means of torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of any act punishable under Section 206 [torture], is murder of the first degree. All other kinds of murders are of the second degree.” (§ 189, italics added.) Thus, first degree murder can result from (1) murder perpetrated by means of torture, or (2) murder committed in the perpetration of a violation of section 206, i.e., torture-felony-murder. Although closely related and to some extent overlapping, these are distinct legal concepts, and this distinction permitted the prosecutor in the instant case to present a murder-by-torture theory to the jury while avoiding applicability of the duress defense.

With respect to murder deemed to be first degree based on the means of perpetration, as set forth in the first half of section 189, “if a killing is murder , and is by one of the means enumerated in section 189, the use of such means makes the killing first degree murder as a matter of law. It must be emphasized, however, that a killing by one of the means enumerated in the statute is not murder of the first degree unless it is first established that it is murder. If the killing was not murder, it cannot be first degree murder, and a killing cannot become murder in the absence of malice aforethought. Without a showing of malice, it is immaterial that the killing was perpetrated by one of the means enumerated in the statute.” (People v. Mattison (1971) 4 Cal.3d 177, 182.)

“Torture murder is ‘murder committed with a wilful, deliberate and premeditated intent to inflict extreme and prolonged pain.’ [Citation.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1239, quoting People v. Steger (1976) 16 Cal.3d 539, 546; People v. Elliot (2005) 37 Cal.4th 453, 466.) “There is no requirement that the victim be aware of the pain; what is considered culpable enough to punish the crime as a first degree murder is the calculated intent to cause pain for ‘”the purpose of revenge, extortion, persuasion or for any other sadistic purpose.’” [Citations.]” (People v. Pensinger, supra, at p. 1239; see People v. Elliot, supra, at pp. 466-467.)^[20] “‘When a killing is perpetrated by means of torture, the means used is conclusive evidence of malice and premeditation, and the crime is murder of the first degree.’ [Citation.]” (People v. Steger, supra, at p. 546, fn. 2.)

The felony-murder doctrine, which is codified in the second half of section 189, “eliminates the requirements of malice and premeditation for first degree murder and provides that a killing is still murder of the first degree, whether intentional or unintentional, if it is committed in the perpetration of, or the attempt to perpetrate, certain serious felonies .” (People v. Portillo (2003) 107 Cal.App.4th 834, 843.) Included in this doctrine is murder committed in the perpetration of, or attempt to perpetrate, “any act punishable under Section 206 .” (§ 189.) Section 206 provides: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.

The crime of torture does not require any proof that the victim suffered pain.”

Under California law, “[a] separate crime of torture did not exist until June 5, 1990, when section 206 was added by Proposition 115 and approved by the voters. In 1999, section 189 was amended to add section 206 to the enumerated felonies defining first degree felony murder. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1219.) One purpose of the amendment to section 189 was to eliminate second degree torture-felony-murder. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1574 (1999-2000 Reg. Sess.) as introduced, p. 2, at

pub/99-00/bill/asm/ab_1551-1600/ab_1574_cfa_19990412_121435_asm_comm.html> [as of July 10, 2006]; see Shackleford v. Hubbard (9th Cir. 2000) 234 F.3d 1072, 1078.)

Although murder perpetrated by means of torture and torture-felony-murder are each species of first degree murder, they are not identical, as the intent required for each is not identical: murder perpetrated by means of torture requires willful, deliberate, and premeditated intent, while torture-felony-murder, which requires the intent to violate section 206, does not since section 206 does not. (See People v. Hale (1999) 75 Cal.App.4th 94, 107 [premeditated intent is element of § 189, but not § 206]; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1206 [same].) Given the distinction between the two forms of first degree murder based on torture, it was within the prosecutor’s prerogative to rely on one and not the other. Since, as we have discussed, murder perpetrated by means of torture first requires that there be a murder (People v. Mattison, supra, 4 Cal.3d at p. 182; People v. Talamantez (1985) 169 Cal.App.3d 443, 453), and since duress is not a defense to murder (People v. Vieira, supra, 35 Cal.4th at p. 290; People v. Anderson, supra, 28 Cal.4th at p. 780), it necessarily follows that jurors here were properly precluded from considering duress as a defense to murder perpetrated by means of torture.

We turn now to the fifth theory of first degree murder, murder in furtherance of a conspiracy to commit torture. Pursuant to CALJIC No. 8.26, jurors were told: “If a number of persons conspired together to commit the uncharged crime of torture and if the life of another person is taken by one or more of them in furtherance of the common design, and if the killing is done to further the common purpose or is an ordinary and probable result of pursuit of that purpose, all of the co-conspirators are equally guilty of murder in the first degree, whether the killing is intentional, unintentional, or accidental.” The prosecutor told jurors that under this theory, if there was a target offense such as torture, everyone who conspired to commit that crime was guilty of murder, regardless of their own personal intent. The prosecutor stated: “As long as they have the intent for torture, they are all guilty of murder.” He emphasized that duress only applied to felony murder, with kidnapping being the felony in this case, and that duress did not apply to the other four theories. In his closing argument, he elaborated: “A reminder, duress does not apply to the crime of murder. It only applies as an exception to the felony element of felony murder. It doesn’t apply to any other form of murder. If [Ebaniz] helped in any other way in any form of murder, he’s guilty, and he doesn’t have a defense.

There’s your forms. The defendant caused this. He brought Eric [Jones] there. He participated in the torture, and he has no defense.”

“[A]n uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788-789; see People v. Durham (1969) 70 Cal.2d 171, 180-181, fn. 7.) Once the existence of a conspiracy is established, “each member of [the] conspiracy is liable for all acts of his coconspirators, intended, unintended, or even actually forbidden, provided only that such acts be in furtherance of the common purpose of the conspiracy. [Citations.]” (People v. Manson (1976) 61 Cal.App.3d 102, 209-210.)

“‘To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.’ [Citation.]” (People v. Hardy (1992) 2 Cal.4th 86, 148-149.) In the present case, appellant was not charged with conspiracy. Nevertheless, in order to convict appellant of first degree murder on the theory of murder in furtherance of a conspiracy to torture, the prosecutor had to prove the existence of a conspiracy to commit torture. Accordingly, he had to prove appellant harbored “an intent to agree or conspire, and a further intent to commit the target crime, here [torture], the object of the conspiracy.” (People v. Swain (1996) 12 Cal.4th 593, 602.) Thus, while we recognize that conspiracy liability and felony-murder liability are, as respondent observes, separate concepts in and of themselves (see, e.g., People v. Escobar (1996) 48 Cal.App.4th 999, 1018-1020, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 923-925; People v. Luparello (1986) 187 Cal.App.3d 410, 436-438), CALJIC No. 8.26 combines principles of both. The felony-murder aspect of this theory of criminal liability was overlooked at trial.

Liability for first degree murder based on a felony-murder theory requires the prosecution to “establish that the defendant, either before or during the commission of the acts that caused the victim’s death, had the specific intent to commit one of the [section 189] felonies. [Citations.]” (People v. Lewis, supra, 25 Cal.4th at p. 642.) Liability on a theory of conspiracy to commit some crime other than murder requires the prosecution to establish that the defendant intended to agree or conspire, and that he or she intended to commit the target crime, i.e., the object of the conspiracy. (People v. Swain, supra, 12 Cal.4th at p. 602.) Thus, neither theory requires an intent to commit murder, but rather both require an intent to commit the underlying or target felony. By logic, if duress provides a defense to murder on a felony-murder theory by negating the underlying felony (People v. Anderson, supra, 28 Cal.4th at p. 784), it similarly provides a defense to murder on a theory of murder in furtherance of a conspiracy to commit a felony other than murder, again by negating the underlying felony (and, most likely, the intent to agree).^[21]

In our view, the instructions given in the present case did not convey this to the jury. We recognize that special instruction B informed jurors that if they found appellant conspired or aided and abetted prior to being placed under duress, with knowledge that the others intended to torture Jones and with the shared intent to torture, then duress would not be a defense to the charge of torture murder. While this instruction was not erroneous, it referred specifically to torture murder, and not to murder in furtherance of a conspiracy to commit torture. Moreover, the instruction did not tell jurors whether duress could apply to murder in furtherance of a conspiracy to commit torture if they found appellant was placed under duress before he purportedly conspired or aided and abetted. Given the prosecutor’s emphatic and repeated statements that duress only applied to kidnap-felony-murder, we cannot assume jurors were able to pry the correct legal principles from the instruction. While there was no evidence that appellant acted under duress in luring Jones to the garage, jurors could have concluded he had no knowledge of, or intent to commit, torture at that time. The theory of liability for first degree murder propounded by the prosecution was not a conspiracy to commit mere assault, but a conspiracy to commit torture.^[22]

Special instructions F and G, which were refused by the court, were not completely correct statements of law, as they did not adequately distinguish between the various legal principles involving murder and torture. Nevertheless, we reject the notion that appellant was obligated to object to the instructions given by the court, or to seek modification or proffer a pinpoint instruction, and that his failure to do so should bar his claim on appeal. A trial court is required to instruct sua sponte on the duress defense if it appears that the defendant is relying on such a defense, or if there is substantial evidence of the defense and it is not inconsistent with the defendant’s theory of the case. (People v. Wilson (2005) 36 Cal.4th 309, 331; People v. Breverman (1998) 19 Cal.4th 142, 157.)^[23] Where, as here, a case is tried on alternative theories, and duress is applicable to some but not others, the trial court has a further duty to instruct the jury as to the defense’s applicability. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99, fn. 31.) Moreover, while a trial court has no duty to give a legally incorrect instruction (People v. Kelly (1992) 1 Cal.4th 495, 532), it is required to give, sua sponte, a correctly phrased instruction on the defendant’s theory (People v. Stewart (1976) 16 Cal.3d 133, 140).

We further reject any suggestion that appellant’s claim fails because the duress defense applies to crimes, and not to mere theories of liability. Felony murder is not a crime distinct from, for example, premeditated murder (People v. Benavides (2005) 35 Cal.4th 69, 101), but properly may be termed a theory of the crime of murder (see People v. Elliot, supra, 37 Cal.4th at p. 465), and yet duress furnishes a defense to it. Conspiracy to commit a felony is a crime, and we see no reason to permit a prosecutor to avoid application of the duress defense by the artifice of relying on conspiracy principles for purposes of liability without charging the offense itself.

Lastly, we turn to whether the error was prejudicial. We must conclude that it was, because, although it fatally tainted only one of the prosecutor’s five theories of liability, we cannot determine, to any degree of probability, the basis(es) upon which the jury did or did not rest its verdict. (See People v. Perez (2005) 35 Cal.4th 1219, 1232-1234; People v. Guiton (1993) 4 Cal.4th 1116, 1128-1131; People v. Brown (1991) 226 Cal.App.3d 1361, 1371-1372, disapproved on other grounds in People v. Russo (2001) 25 Cal.4th 1124, 1134; People v. Sellers (1988) 203 Cal.App.3d 1042, 1055.)

II

REMAINING CONTENTIONS

In light of our conclusion that appellant’s murder conviction must be reversed, we decline to offer an advisory opinion on appellant’s remaining claims of instructional error. What instructions are required or appropriate will depend in large part on the theory(ies) of liability pursued by the prosecution and the evidence presented in the event of a retrial, and any argument thereon should be addressed to the trial court in the first instance.

DISPOSITION

The judgment is reversed.

_____________________

Ardaiz, P.J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Dawson, J.

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