P. v. Farias and Guerrero

Filed 10/20/06 P. v. Farias and Guerrero CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Affirmed.

Peter R. Afrasiabi, under appointment by the Court of Appeal, for Defendant and Appellant Humberto Farias.

Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo Guerrero.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and James Flaherty, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendants Humberto Farias and Gerardo Guerrero of conspiracy and attempted robbery, and found true the allegations Farias was vicariously armed and Guerrero used a gun during the crime. They argue the trial court committed instructional error when it omitted a specific intent requirement on the conspiracy charge. Guerrero also contends the court should have given a unanimity instruction on the use allegation. Finding no basis to overturn the judgment, we affirm.

I

Francisco Nava attended a party held by his friends in front of their Santa Ana apartment on October 9, 2004. Shortly after midnight, two men, later identified as Farias and Guerrero, approached Nava’s group. Both men wore a handkerchief covering their face below their eyes. According to Nava, Farias walked toward him and demanded his wallet. Guerrero, the shorter of the two, stood a few feet back and pointed a rifle at the group, threatening to shoot if they resisted. Nava and his friends refused to hand over their wallets. When an upstairs light went on and a neighbor stepped outside, the would-be robbers fled. Nava and his friends followed as Guerrero and Farias entered a courtyard between two apartment buildings. After they heard a gunshot, Nava’s group returned home and called the police.

Gunshots awakened Mario Ambario. From his bedroom window, he saw two men and a woman run through the courtyard and into the garage area of the apartment building behind his. One carried a long object. He called the police.

Police officers responded within five minutes of the call. They spoke with Nava and Ambario, who directed the officers to the location where the assailants fled. Officers found Farias crouching along the fence line, partially concealed by shrubs. The officers discovered a .22 caliber rifle, containing a live round, approximately four feet from Farias beneath a bush and covered with a cloth. Farias had two live .22 caliber rounds in his pockets. Officers encountered Guerrero in the garage. They found a spent .22 caliber bullet casing on the garage floor. Nava identified both suspects and their roles at the scene and in court.

Following a trial that concluded in February 2005, a jury convicted both defendants of conspiracy and attempted robbery. The jury also found true allegations Guerrero personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and that Farias was vicariously armed (Pen. Code, § 12022, subds. (a)(1), (2).) The trial court sentenced Farias to three years imprisonment on the conspiracy count, stayed sentence on the attempted robbery count, and struck the enhancement. Guerrero received a two-year prison sentence for the attempted robbery and 10 years for the use enhancement for a total term of 12 years.

II

Farias and Guerrero contend the trial court erred when it modified the standard CALJIC conspiracy instruction (CALJIC No. 6.10 (7th ed. 2003)) to omit the requirement that a defendant must have the specific intent to commit the target offense of the conspiracy. The Attorney General concedes the trial court erred in deleting this element, but argues the error was harmless. We agree.

“The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense.” (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) CALJIC No. 6.10 sets forth the elements of conspiracy, and provides in pertinent part: “A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of _______ [[or] ______ ] and with the further specific intent to commit that crime [[or] _____ ], followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime.” (CALJIC No. 6.10 (7th ed. 2003), italics added.)

As the Supreme Court has explained, the crime of conspiracy requires dual specific intents: a specific intent to agree to commit the target offense, and a specific intent to commit that offense. The court has “cautioned trial courts not to modify CALJIC No. 6.10 to eliminate either of these specific intents. [Citation.]” (People v. Jurado (2006) 38 Cal.4th 72, 123 (Jurado).) The trial court erred when it deleted the italicized language from the instruction.

The issue here is whether the omission constitutes reversible error. We turn to Jurado for guidance. There, the Supreme Court concluded the trial court erred in deleting from CALJIC No. 6.10 the requirement that a defendant must specifically intend to commit the target offense of murder but found that the defendant suffered no prejudice. The court explained that in a murder conspiracy, the specific intent to commit the target offense of murder requires that the defendant harbor the specific intent to kill. Although this element was erroneously omitted from the conspiracy instruction, the jury nonetheless found that defendant possessed the requisite specific intent when they also found defendant guilty of the separate offense of first degree murder. (Ibid.)

Similarly, in this case the trial court correctly instructed the jury on attempted robbery. The court instructed that an attempt to commit a crime “consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Italics added.) Moreover, the court did not instruct on the principle that a member of a conspiracy is liable for other crimes committed by a confederate that were “not intended as a part of the agreed upon objective . . . .” (See CALJIC No. 6.11 (7th ed. 2003).) It is axiomatic that “‘[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’” (People v. Wright (1985) 39 Cal.3d 576, 589.) Here, the jury’s verdict that both defendants were guilty of attempted robbery necessarily included findings both specifically intended to commit robbery. There is also no evidence in the record that would lead a rational juror to conclude that defendants specifically intended to agree to rob Nava, but without a specific intent to actually rob him. We are satisfied the instructional error was harmless beyond a reasonable doubt.

III

Guerrero contends the trial court erred by failing to give a unanimity instruction for the use allegation because there was conflicting evidence concerning which defendant used the weapon. Specifically, Guerrero argues “the discovery of the gun next to [Farias] and [Farias’s] possession of the rifle ammunition in his pocket strongly suggested he was the gunman. Ambario’s sighting of a third fugitive left open the possibility that this unknown person was the gunman.” Guerrero misapprehends how the unanimity instruction operates.

Criminal defendants have the constitutional right to a unanimous verdict. (Cal. Const., art. I, § 16.) Consequently, whenever a defendant is charged with one crime, but the prosecution presents evidence of multiple criminal acts, there is the potential danger the jury could convict without unanimously agreeing which act constituted the crime. To prevent this occurrence, the standard unanimity instruction (see CALJIC No. 17.01) informs the jury it must unanimously agree that the defendant committed the same specific criminal act. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The instruction is required, however, only where the prosecution has presented proof of more than one criminal act to support the charged crime.

Here, only one of the two assailants pointed a rifle at the victim. Thus, only one criminal act supported the use enhancement. Guerrero relies on evidence that, in his view, casts doubt on his identification as the assailant who used the rifle. But this evidence concerns only the identity of the person who committed the criminal act, not whether multiple criminal acts occurred. The unanimity instruction does not apply to evidence of identity.

Guerrero also argues the jurors may not have unanimously agreed he used a gun during the attempted robbery because “arming themselves with a rifle” was one of the overt acts alleged and CALJIC No. 6.22 informed the jurors they were “not required to unanimously agree as to who committed an overt act, or which overt act was committed, so long as each [juror] finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the information to be overt acts.” Guerrero also quotes the prosecutor who, while arguing that Farias had been found near the rifle with ammunition in his pockets, stated, “[h]e was using this rifle. The same rifle that the victim identifies as being like the one that was, just moments before, used against him.” We conclude no reasonable juror would have been confused by the court’s instructions.

The trial court instructed the jurors the use enhancement applied only to the attempted robbery charge alleged in count 2. CALJIC No. 17.19 provided: “It is alleged in count 2 that the defendant Guerrero personally used a firearm during the commission of the crimes charged. If you find the defendant guilty of an attempt to commit robbery, you must determine whether the defendant Guerrero personally used a firearm in the commission of that felony. . . . The term ‘personally used a firearm,’ . . . means that the defendant must have intentionally displayed a firearm in a menacing manner . . . . If you have a reasonable doubt that it is true, you must find it to be not true.” (Italics added.)

Similarly, the court instructed the jury that the vicarious armed allegation against Farias applied only to the attempted robbery charge. The trial court also instructed jurors that “[i]f you find defendant Farias guilty of the crime thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes.” Finally, CALJIC No. 17.50 added, “In order to reach verdicts all 12 jurors must agree to the decision and to any finding you’ve been instructed to include in your verdict.” (Italics added.)

Reasonable jurors would have applied the instructions on overt acts solely to the conspiracy charge. Consequently, no unanimity instruction was required.

Judgment affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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