P. v. Sanchez

Filed 10/12/06 P. v. Sanchez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sutter)

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A jury convicted defendant Juan Jose Sanchez, Jr., of first degree murder (Pen. Code, §§ 187, subd. (a), 189),^[1] found true an allegation that defendant was vicariously armed during the offense (§ 12022, subd. (d)), and sustained a lying-in-wait special circumstance (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to life without the possibility of parole and a consecutive three-year term for the firearm enhancement.

On appeal, defendant contends the lying-in-wait special circumstance does not apply to an aider and abettor. We reject the contention and affirm.

BACKGROUND

On July 20, 2002, the body of Alfredo Del Real was discovered by a farm worker in an orchard in Nicolaus. The victim was killed by gunshots to the head.

On the morning of the murder, defendant picked up the victim and his 13-year-old girlfriend April from Del Real’s mother’s house in Sacramento County. The three got into defendant’s Jeep with codefendant Daniel Murillo and started driving to Yuba City. They made several stops during the trip so defendant could make calls from pay telephones.

The Jeep stopped and turned around at Nicolaus for a bathroom break. Murillo got out to go to the bathroom, but when he returned, Murillo said “he couldn’t go.” The group stopped again so defendant could to go to the bathroom. Defendant also said he “couldn’t go” after returning to the vehicle.

Defendant drove the Jeep into an orchard and stopped. Murillo said that he had to go to the bathroom and left the Jeep. Upon returning, Murillo told the victim someone in the orchard threatened to shoot one of them if they did not leave soon.

April heard the victim say “let’s go” in Spanish. There was angry conversation in Spanish that April did not understand, but she remembered that defendant told the victim to “take it like a man.” Murillo told the victim, “‘Come on, get out of the car.’” He then asked the victim, “‘Do you want it the hard way or the easy way?’” The victim left the Jeep, telling April that “he loved me and he was sorry.”

Murillo told defendant to “‘[d]rive the girl somewhere over there.’” As defendant drove her away, April saw the victim on his knees in front of Murillo, who pointed a gun six to eight inches from the victim’s head. Murillo fired one shot into the victim’s head, kicked the victim so he faced skyward, and shot him again.

Defendant quickly drove the Jeep to Murillo, who jumped in the vehicle. The two shook hands and laughed. Defendant told April they killed the victim because he did something to defendant’s family. April was dropped off at the home of Rosie Howell, the mother of one of her friends. Howell called the police after April explained what had happened.

Defendant presented no witnesses but Murillo testified on his own behalf. He stated defendant let him off at the orchard to go to the bathroom and then drove off. Murillo heard gunshots as he was relieving himself. He then walked to the road, where defendant told him to get into the Jeep. As he got in, Murillo saw the victim’s body on the ground.

The jury hung on Murillo’s guilt for first degree murder and a mistrial was declared as to him.

DISCUSSION

Defendant’s sole contention on appeal is that the lying-in-wait special circumstance does not apply to an aider and abettor as a matter of law, and therefore the true finding on this special circumstance must be stricken because he did not personally kill Del Real.^[2] Defendant relies on the statutory language of the lying-in-wait special circumstance, which states: “The defendant intentionally killed the victim by means of lying in wait.” (§ 190.2, subd. (a)(15).) He asserts this precludes a true finding on the special circumstance unless the defendant is the actual killer.

This case presents an issue of statutory interpretation, which we examine de novo. (Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1103.) Our task is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. (People v. Mendoza (2000) 23 Cal.4th 896, 907 (Mendoza).) We begin “by examining the statute’s words, giving them a plain and commonsense meaning. [Citation.] In doing so, however, we do not consider the statutory language ‘in isolation.’ [Citation.]” (Ibid.) Rather, we construe the words of the statute “‘in context, keeping in mind the nature and obvious purpose of the statute . . . .’ [Citation.]” (West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608.) In other words, we must “harmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.’” (Mendoza, supra, 23 Cal.4th at p. 908.) And “[w]e must also avoid a construction that would produce absurd consequences, which we presume the Legislature did not intend.” (Ibid.)

The special circumstance enumerated in section 190.2, subdivision (a)(15) applies to an aider and abettor who had the intent to kill. Defendant’s contention ignores the plain language of section 190.2, subdivision (c), which specifically provides that every person who is not the actual killer, but who with the intent to kill aids and abets the murder, “shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.” One of the special circumstances enumerated in subdivision (a) is lying in wait. (§ 190.2, subd. (a)(15).)

Further, although defendant maintains there is no published case on point, the case of People v. Vasco (2005) 131 Cal.App.4th 137 (Vasco) is instructive. In Vasco, the defendant assisted her former lover in hiring someone to kill his wife. Although the defendant was not the actual killer, she was found to have aided and abetted the murder of the wife. The lying-in-wait special circumstance was found true as to the defendant. (Id. at pp. 142-143, 161.) While the appellate court did not directly address the lying-in-wait special circumstance in its opinion, it did affirm the judgment. (Id. at p. 162.)

Defendant argues that since Murillo, the principal charged with the actual shooting, was not convicted of murder, defendant should not be liable for the special circumstance as an aider and abettor. The principal and an aider and abettor do not have to share liability. An aider may be convicted of a more culpable crime than the principal. (People v. McCoy (2001) 25 Cal.4th 1111, 1122.) Prior acquittal of the principal generally does not require acquittal of an aider and abettor. (See People v. Wilkins (1994) 26 Cal.App.4th 1089, 1090 (Wilkins).)

There are narrow exceptions to this rule. There is a split of authority over whether multiple inconsistent verdicts at a joint trial would require acquittal of the aider and abettor if the principal were acquitted at the joint trial. (See Wilkins, supra, 26 Cal.App.4th at p. 1092.) The California Supreme Court has recognized a very narrow exception when there is factual issue identity between the liability of the principal and the aider and abettor. (See People v. Taylor (1974) 12 Cal.3d 686, 698; Wilkins, supra, 26 Cal.App.4th at p. 1095.) These exceptions do not apply to defendant because Murillo was not acquitted.

Defendant clearly intended to kill the victim, and there is ample evidence that the murder was committed by means of lying in wait. We conclude the lying-in-wait special circumstance applies to defendant pursuant to section 190.2, subdivision (c) as an aider and abettor with the intent to kill.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

HULL , J.

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^[1] All further statutory references are to the Penal Code.

^[2] Defendant did not object to his sentence. Defendant’s claim is not forfeited by his failure to object because the claim implicates the trial court’s authority to impose the sentence. (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284.)