Opinion
B220310
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ALVARO ALEMAN et al., Defendants and Appellants.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant Alvaro Aleman. Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Pedro Reyes. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Jose Guillen. John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Elvis Jimenez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA341171)
APPEALS from judgments of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed as modified.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant Alvaro Aleman.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Pedro Reyes.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Jose Guillen.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Elvis Jimenez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Jose Efrain Vargas Guillen (Guillen), Alvaro Aleman (Aleman), Pedro Reyes (Reyes), and Elvis Jimenez (Jimenez), appeal from judgments entered after they were convicted of murder, robbery, and burglary. This court granted respondent's motion to consolidate the four appeals for all purposes.
We refer to each defendant by his last name, and to them collectively as defendants or codefendants.
Guillen contends that his life sentence without the possibility of parole is cruel and unusual, and he joins in the arguments of codefendants.
Aleman challenges the sufficiency of the evidence to prove the knowledge and intent elements of aiding and abetting in robbery. He also contends that the trial court erroneously instructed the jury with CALCRIM No. 220, and he joins in the arguments of codefendant Reyes.
Reyes contends that the evidence was insufficient to prove that he participated in the crime and that the trial court erred in admitting autopsy photographs and in giving certain jury instructions: CALCRIM Nos. 376 (No. 376), 400 (No. 400), 700 (No. 700), and 704 (No. 704). He joins in the arguments of codefendants, as well.
Jimenez contends that there was insufficient evidence that he acted with "reckless indifference to human life" in participating in the robbery that resulted in the murder to support the special circumstance. Jimenez also challenges unauthorized sentence enhancements.
We strike the unauthorized sentence enhancements imposed upon Jimenez, as well as similar enhancements imposed upon Guillen, but reject defendants' remaining contentions, and otherwise affirm the judgments.
BACKGROUND
1. Procedural Background
A. The Charges
All four defendants were charged in count 1 of the third amended information with the first degree murder of Efrain Leyva (Leyva). The information alleged the special circumstance, pursuant to Penal Code section 190.2, subdivision (a)(17), that Guillen, Reyes, and Jimenez murdered Leyva while committing a robbery. Count 2 alleged that all of the defendants committed second degree robbery (from Leyva), in violation of section 211, and count 3 alleged that they committed second degree burglary in violation of section 459. Count 4 alleged that the defendants committed second degree robbery of Maria Sawyer (Sawyer).
All further statutory references are to the Penal Code, unless otherwise indicated.
Pursuant to section 12022.53, subdivisions (b), (c), and (d), respectively, the third amended information alleged as to all counts that in the commission of the crimes, Guillen personally used a firearm, and personally and intentionally discharged a firearm, causing great bodily injury and death to Leyva. The information also alleged, for purposes of section 190.2 (juvenile triable as an adult), that Guillen was older than 14 years of age when he killed Leyva.
With regard to all counts, the third amended information alleged pursuant to section 12022.53, subdivisions (b) and (c), respectively, that Jimenez personally used a firearm, and that he personally and intentionally discharged a firearm in the commission of the crimes.
With regard to all counts, the third amended information alleged that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
B. The Judgments
Reyes was tried first, separately, but the trial court declared a mistrial after finding the jury hopelessly deadlocked. The trial court then joined Reyes's retrial with Aleman's trial, and severed Guillen's case from theirs, with Guillen to be tried first. While Guillen's jury was deliberating, the Aleman-Reyes trial commenced. On October 1, 2009, Guillen's jury returned guilty verdicts on all four counts, and true findings on all special allegations. On October 8, 2009, the Aleman-Reyes jury returned guilty verdicts against both defendants on all four counts, and true findings on all special allegations.
Thereafter, the trial court sentenced Guillen to life in prison without the possibility of parole (LWOP). The court imposed and stayed the 10-year enhancement of section 12022.53, subdivision (b), but imposed a consecutive term of 25 years to life under section 12022.53, subdivision (d). As to counts 2 and 3, the trial court imposed the high term of five years, each enhanced by 10 years under section 12022.53, subdivision (b), and 25 years to life under subdivision (d), all stayed pursuant to section 654. With regard to count 4, the robbery of Sawyer, the trial imposed a consecutive high term of five years, plus 10 years under section 12022.53, subdivision (b), which the court stayed, and enhanced by 25 years to life under section 12022.53, subdivision (d).
The same day, Aleman was sentenced on count 1 to 25 years to life in prison, enhanced by one year pursuant to section 12022, subdivision (a)(1). As to count 2, the trial court imposed the high term of five years, and as to count 3, the court imposed the high term of three years, plus one year under section 12022, subdivision (a)(1). The sentences on counts 2 and 3 were stayed pursuant to section 654. With regard to count 4, the trial court imposed a consecutive high term of five years, plus one year pursuant to section 12022, subdivision (a)(1).
The trial court sentenced Reyes to LWOP, enhanced by one year under section 12022, subdivision (a)(1). As to count 2, the trial court imposed the high term of five years, enhanced by one year under section 12022, subdivision (a)(1). As to count 3, the trial court imposed the high term of three years, plus one year under section 12022, subdivision (a)(1). The sentences on counts 2 and 3 were stayed pursuant to section 654. With regard to count 4, the trial court imposed a consecutive high term of five years, plus one year under section 12022, subdivision (a)(1).
Jimenez's trial went forward in December 2009 and that jury returned guilty verdicts on all four counts and true findings on all special allegations.
The trial court sentenced Jimenez on count 1 to LWOP, plus 10 years pursuant to section 12022.53, subdivision (b). The court stayed the 10 years, and added a consecutive 20-year term pursuant to section 12022.53, subdivision (b). As to count 2, the trial court imposed the high term of five years, enhanced by 10 years and 20 years under 12022.53, subdivisions (b) and (c), respectively. As to count 3, the trial court imposed the high term of three years, also enhanced by 10 years and 20 years under 12022.53, subdivisions (b) and (c), respectively. The sentences on counts 2 and 3 were stayed pursuant to section 654.
On count 4, the trial court sentenced Jimenez to the high term of five years, plus 20 years under 12022.53, subdivision (c), to run consecutively to the term imposed as to count 1. The court imposed, but stayed, the 10-year enhancement under 12022.53, subdivision (b).
Defendants each filed a timely notice of appeal. 2. Relevant Evidence Adduced in All Trials
Although there were three trials, the testimony of some witnesses was nearly identical in each. We summarize first the testimony of such witnesses and other evidence adduced that did not vary from trial to trial, and then provide, in the discussion section, individualized summaries of additional relevant evidence that differed in each trial.
A. The Robbery/Murder
Sawyer testified in all three trials that Leyva was her boyfriend, and that they worked together at his store, Leyva's Produce, in Los Angeles. On May 23, 2008, after they had closed the store and were in the office counting money, a man entered at approximately 5:00 p.m., displayed a gun, and told her that if she had children she should get on the floor. When she lay down, someone tied her hands behind her head with a plastic tie. Sawyer heard the voice of a second man asking for keys, two gunshots, and then a voice that said, "Look what you're doing." She also heard the sounds of a plastic bag moving.
Sawyer testified that when they counted cash receipts, the total was usually in the neighborhood of $90,000.
The office door then closed, and she heard no more noise inside the office, but she heard two gunshots in the store. After she heard someone close the store's exterior door, she freed her hands and called 911.
B. The Surveillance Videos
Detective Miguel Terrazas of the Los Angeles Police Department (LAPD) obtained time-stamped surveillance videos taken from cameras inside and outside Leyva's Produce. Clips from the surveillance videos were combined on a DVD and played for the jury. Numerous still photographs taken from the video were admitted into evidence.
In the video, a man wearing a yellow shirt with a black horizontal stripe (determined to be Reyes) is seen walking toward the store shortly after 3:00 p.m. He is soon followed by a man wearing blue jeans, a dark-colored hooded jacket ("hoodie"), a dark cap, and white shoes. The man in the dark hoodie and white shoes enters the store, followed by a man wearing blue jeans, a dark cap, and something red under a dark hoodie (determined to be Guillen and Jimenez).
Shortly before 5:10 p.m., cameras inside an empty Leyva's Produce capture two men running toward the office, with outstretched hands pointing guns. It is apparent that they are the two men who followed the man in the yellow shirt and entered the store shortly after 3:00 p.m. A minute after running into the office, one of the men brings Leyva to a stack of boxes just outside the office, and stands guard over him at gunpoint (Guillen). The other gunman can be seen through the window of the office, moving about (Jimenez).
Moments later, the video shows Leyva gesturing several times toward the office. The gunman guarding him shoots him in the leg, causing him to squat or sit. The gunman places a cellular telephone (cell phone) against his ear, and when he completes his call, he holds Leyva by the shirt, although Leyva is no longer gesturing and offers no resistance. The gunman looks toward the office, and just as the second gunman emerges, he puts the gun close to Leyva's head, and fires. Both gunmen then run out of view together. The shooter appears to be limping and moves more slowly than the other gunman.
At approximately 5:18 p.m., a white Honda sedan, driven by someone in a yellow shirt, is captured by another camera as it approached the store entrance and stopped in the street. The two gunmen then run out and get into the back seat of the car. Before the door is fully closed, the car pulls away and disappears out of view.
C. The Hospital Events
Guillen and Aleman were arrested the evening of the murder after a security guard at St. Vincent's Medical Center (the hospital) observed them in the parking area beginning at approximately 5:45 p.m. The security guard saw a man later identified as Aleman, drive the white Honda into the hospital's driveway, park, and help another man, later identified as Guillen, into the emergency room (ER). Aleman returned to the car, removed paper dealer plates covering the original license plates on the Honda, and discarded them in a nearby trash can. After Aleman moved the car to a regular parking space, the police arrived, arrested Guillen and Aleman, and seized the Honda as well as the pair's clothing and personal effects.
D. Investigation
The medical examiner testified that the bullet fired into Leyva's right leg passed through an artery and a vein, causing a potentially fatal wound. Leyva's death was directly caused by the gunshot wound to his head. The bullet was fired into his right temple at very close range, no more than one-half inch away, and traveled through his brain.
A few days after the murder, the police searched the home of Reyes, and found more than $12,000 in cash on the floor under a dresser drawer, including two bloody $50 bills. Cash totaling $2,330 was found in a safe. The parties stipulated that a properly performed DNA test showed that the blood on the bills was Guillen's.
Three or four days after the search, a gray pickup truck with a red camper was found parked in the carport of Reyes's home.
DISCUSSION
I. Guillen's Appeal
A. Additional Evidence Adduced in Guillen's Trial
While Guillen was being treated in the ER for a gunshot wound in his leg, he admitted to Detective Tommy Thompson that he had shot the owner of the store, but he would not name his accomplices. Sawyer had not seen the faces of any of the robbers.
Detective Kelle Baitx testified that while processing the murder scene, he and other detectives found bloody shoe prints in several places around the store, some of them on top of money. There was also blood on the key hook in the office. The parties stipulated that in addition to Guillen's DNA on the $50 bills, his DNA was found on one of the bloody plastic ties recovered at the crime scene.
Guillen testified that he was 17 years old at the time of the robbery, 18 years old at the time of trial. He claimed that Reyes and an unidentified important member of the Mara Salvatrucha gang told him to commit the robbery, and that Reyes told him to take all the blame, or Reyes would kill Guillen and his family. An expert witness testified that anyone who cooperated with law enforcement might be targeted by the gang for violent assault or death.
Guillen testified that Jimenez shot him in the leg, because he refused to "hit" Leyva. He claimed that Reyes then took the gun away from Guillen and led Leyva out of the office while Guillen tied up Sawyer and took the money and keys. Guillen claimed that he heard more gunshots while he was in the office, and that later, in the car, Jimenez told Reyes that he had killed the store owner. Guillen acknowledged that prior to his testimony, he had twice admitted to detectives that he was the one who shot Leyva both times. He claimed that he confessed only because Reyes refused to allow Guillen to go to the hospital otherwise, and threatened to kill Guillen and his family if he did not take complete responsibility.
Guillen admitted that he continued to walk around after he was shot, and he identified his blood in photographs of various places in the store. However, when the prosecutor showed him the shooting on the surveillance video, Guillen identified Jimenez as the person shooting Leyva, and denied that the shooter was limping or dragging his right leg. Guillen claimed that he was the person shown running past the shooter and to the Honda with no difficulty.
Detective Terrazas testified in rebuttal that when he interviewed Guillen, Guillen did not claim that he acted under duress, and that Jimenez had no limp and required no medical attention after his arrest 8 to 10 days after the robbery.
B. Guillen's Sentence was Neither Cruel nor Unusual
Guillen contends that, as applied to him, a life term without the possibility of parole violated the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment, as well as article 1, section 17 of the California Constitution, which prohibits cruel or unusual punishment.
Under the California Constitution, punishment is cruel or unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) A sentence does not violate the Eighth Amendment as long as the ultimate punishment is not grossly disproportionate to the crime. (Solem v. Helm (1983) 463 U.S. 277, 288-289.)
The California Supreme Court suggested a three-prong analysis and identified certain factors to consider in determining proportionality. (In re Lynch, supra, 8 Cal.3d at pp. 424-425; People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon))The first prong of the determination requires a review of "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (In re Lynch, supra, at p. 425.) "Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
Under section 190.5, subdivision (b), a juvenile defendant 16 years of age or older who is convicted of first degree murder with a special circumstance must be sentenced to LWOP, unless the sentencing court, in its discretion, reduces the term to 25 years to life. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142.) Standing alone, the statute does not violate the proscription against cruel or unusual punishment. (Id. at pp. 1143- 1144.) An analysis of "the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts." (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
Viewing the nature of the crime in the light most favorable to his position, Guillen argues that the evidence did not show that the robbers intended to kill Leyva, because if so they would have done it immediately, and would have also shot Sawyer, in order to prevent them from identifying the perpetrators. Guillen argues that the evidence was most consistent with "a robbery gone-bad, during which . . . [he] inexplicably shot the victim, perhaps because [Guillen] had been shot in the leg himself and responded in a panic by shooting the victim." Guillen argues that the jury necessarily found him guilty of first degree murder based upon the prosecution's alternate theory of felony murder, rather than premeditated, deliberate murder. He concludes that LWOP is disproportionate to a felony murder where the evidence did not demonstrate an intent to kill.
Viewing the evidence in the light most favorable to the judgment, as we must, we see a premeditated, deliberate murder. (See People v. Martinez, supra, 76 Cal.App.4th at p. 496.) The surveillance video shows Guillen shooting the unarmed Leyva in the leg, taking a telephone call from Aleman, waiting another half minute or so until Jimenez completed securing the money in the office, and then calmly shooting the incapacitated Leyva in the head, execution style, one-half inch from his temple.
No panic is observable in the video, as Guillen suggests, and we do not agree that Guillen would have shot Leyva and Sawyer immediately if his purpose had been to eliminate witnesses who could identify him. As Sawyer did not see the faces of the robbers, there was no need to eliminate her. Leyva apparently saw the robbers' faces when they asked him for the keys to the business.
In denying Guillen's request for leniency under section 190.5, subdivision (b), the trial court aptly observed that Leyva's murder was "a gratuitous act of exceptional cruelty." Deliberate and premeditated murder with malice aforethought presents the highest level of danger to society, and justifies the greatest punishment, unless it appears that "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.)
Guillen contends that LWOP is disproportionate to the offender, because of his age and lack of criminal history. In support of his contention, he describes the nature of adolescents in general, as it was addressed by the United States Supreme Court in Roper v. Simmons (2005) 543 U.S. 551 (Roper). Roper held that the Eighth Amendment prohibited imposition of the death penalty for crimes committed when the offender was under 18. (Id. at pp. 567-569.) Guillen also relies on the reasoning of Graham, supra, 130 S.Ct. at page 2026, in which the court expressly limited its holding to "only those juvenile offenders sentenced to LWOP solely for a nonhomicide offense." (Id. at pp. 2023, 2033-2034.)
The Supreme Court observed that "[t]hree general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders," for whom the death penalty must be reserved. (Roper, supra, 543 U.S. at p. 569.) Those differences, according to scientific and sociological studies, are an underdeveloped sense of responsibility, a susceptibility to negative influences and outside pressures, including peer pressure, and a lack maturity and well formed character. (Id. at pp. 569-570; see also Graham v. Florida (2010) 560 U.S. _____ (Graham))
Guillen faults respondent for failing to discuss recent nonhomicide cases following Graham. (See People v. Ramirez (2011) 193 Cal.App.4th 613, 626; People v. Caballero (2011) 191 Cal.App.4th 1248, review granted April 13, 2011, S190647; People v. Mendez (2010) 188 Cal.App.4th 47, 62.) As Graham was expressly limited to nonhomicide sentencing, the cited cases do not apply, and respondent had no reason to discuss them.
In both cases, the court rejected the proportionality test in favor of a categorical rule. (Roper, supra, 543 U.S. at pp. 567, 574; Graham, supra, 130 S.Ct. at pp. 2030, 2032-2033.) However, in neither case did the court reach the issue of LWOP for juvenile murderers, or change its prior holding that the Eighth Amendment does not require an individualized proportionality review, unless the punishment gives rise to an inference that it is grossly disproportionate to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 995.) Because no such inference arises from a sentence of less than death, an individualized proportionality review is not required under the federal Constitution. (Id. at pp. 995-996.) None of the cases cited by Guillen holds that a life term without the possibility of parole would be categorically disproportionate to a deliberate and premeditated murder, and we are aware of none. Thus, Guillen has shown no Eighth Amendment violation, and his individual characteristics are relevant only to his contention that the punishment violates the California Constitution. (See Dillon, supra, 34 Cal.3d at p. 479.)
Guillen points to no mitigating evidence of his character, other than age and absence of a criminal record. Although youth and the absence of a prior criminal record are both factors to consider in the defendant's favor, they are not determinative. (People v. Gonzales (2001) 87 Cal.App.4th 1, 17.) More is required to make LWOP an inappropriate punishment for a '"savage and apparently unprovoked"' murder. (People v. Demirdjian (2006) 144 Cal.App.4th 10, 15.) As nothing more appears in this record, Guillen has not shown that his punishment violates the California Constitution.
II. Aleman and Reyes's Appeal
A. Additional Evidence Presented in Joint Trial
Additional footage from the surveillance video inside and outside the store was played for the jury in the Aleman and Reyes trial. After the man in the yellow shirt (Reyes) enters Leyva's Produce and disappears from view, he is recorded by an interior camera carrying a box to the cashier's office. The men in hoodies (Guillen and Jimenez) also enter the store.
The shoes and brown wallet of the man in the yellow shirt are visible as he pays for the box. Moments later, he is recorded by another camera, carrying the box on the street back the way he had come. Approximately 10 minutes later, a truck with a red camper shell is seen moving along the street outside the store, passing a white Honda sedan parked at the curb. Photographs taken of the truck that was impounded from Reyes's residence clearly depict the same truck seen on the surveillance video outside Leyva's Produce.
At 5:12 p.m., the white Honda can still be seen parked near the store where it was parked earlier. Approximately six minutes later, the same car, driven by someone in a yellow shirt, is captured by another camera approaching the store entrance and stopping in the street, as the two gunmen run out and get into the back seat.
The hospital security guard testified that after Aleman moved the Honda to a visitor's parking space, he took from the trunk a black pouch with a pistol grip protruding from it, and placed it under the front passenger seat. Aleman gave a false name to the police officers who detained him a short time later. The officers found a .44-caliber revolver under the front passenger seat, in a black nylon bag. Officers also found an identification card in the name of Jose Alexander Alas, with Guillen's photograph on it. From Aleman's pockets, the officers recovered two cell phones and the keys to Leyva's Produce.
A criminalist who processed the Honda found what appeared to be blood stains on several places inside the car and on a shoe found in the car. Cans of "El Mexicano" brand coconut water were found in the car's interior.
The dealer who had sold the white Honda testified that the buyer, who he identified from a photograph as Aleman, had given the name, Marlo Alvarado, when he purchased the car in 2008.
Records produced by the cell phone company showed a call from Reyes's cell phone to the cell phone associated with Aleman on the day of the murder, at 3:02 p.m., approximately the same time that Reyes was walking toward the store. The records also showed many calls that afternoon from the cell phone seized from Aleman, made to and from the cell phones of Jimenez and Guillen. Calls were made from Aleman's cell phone to Jimenez at 4:47 and 5:04 p.m., and to Guillen at 4:53, 5:05, 5:10, and 5:11 p.m. The last call coincided closely with the timestamp on the surveillance video showing the shooter's phone use just before he shot Leyva in the head.
After Reyes's gray truck was impounded and searched officers found a carton of El Mexicano Coconut Water, with spaces for missing cans of the beverage. The carton closely resembled the carton seen in the video, purchased and carried by the man in the yellow shirt. When the Honda was searched, individual cans of the same beverage were found. Detective Terrazas produced the shoes and wallet seized when Reyes was arrested. They appeared to be the same shoes worn, and the same wallet carried, by the man in the yellow shirt in the surveillance video.
Reyes presented three witnesses in his defense to show that he worked regularly, mostly as a painter, as well as bank records to show a regular income. Aleman did not present testimony in his defense.
B. Aleman's Appeal
1. Substantial Evidence Supports Aleman's Conviction
Aleman contends that the evidence failed to prove that he aided and abetted the crimes. In particular, he contends that the evidence was insufficient to establish that, at the time the crimes were committed, he knew of his codefendants' intent to burglarize Leyva's Produce or rob Leyva or Sawyer. He argues that no evidence placed him at the store the day of the crimes, and that his actions at the hospital implicated him only as an accessory.
An accessory is anyone "who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony . . . ." (§ 32.)
When a criminal conviction is challenged as lacking evidentiary support, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (Ibid.) We do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and [with] (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman).)For aiding and abetting liability to attach, the intent to aid and abet must be formed prior to or during commission of the offense. (See People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165 (Cooper).)
When the crime charged was not the crime the defendant intended to aid and abet, the jury "must also find that . . . the defendant's confederate committed an offense other than the target crime; and . . . the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 262, fn. omitted.)
Aleman argues that the only evidence of his involvement consisted of surveillance video showing his Honda as the getaway car, his appearance with Guillen at the hospital about one-half hour after the murder, and the records pertaining to the cell phones seized from him when he was arrested in the hospital parking lot. He contends that such evidence is insufficient, because he did not appear in the surveillance video at the time of the crime, and although a possible fourth person can be seen at the window of the Honda as it left the scene, the person's clothing is not visible.
Aleman would give no weight to the calls made to and from the cell phone found in his pocket, because it was registered to someone else; was not the only cell phone he carried; and the number associated with it appeared in Guillen's cell phone as belonging to "Oso," whereas his nickname was "Gordo." Further, the cell phone records could not show where Aleman was or whether he was the person using the cell phone connected to Guillen's just before Leyva was killed. Aleman concludes that this was insufficient evidence that he was in possession of the cell phone at the time of the suspicious calls.
Aleman infers no guilt from his removal of the paper dealer plates from the Honda because there was no evidence showing that he knew, before seeing them at the hospital, that they were there. Further, he deduces that a guilty person would have left the false plates on the car in order to conceal its identity. Aleman discounts the transfer of the .44-caliber revolver from the trunk to the passenger compartment, because there was no evidence that such a gun was used in the crimes, and his actions did not result in secreting the gun. A guilty person, he argues, would have gotten rid of the gun altogether, by giving it to someone or hiding it in the bushes.
Aleman also points to the fact that he did not flee after taking Guillen to the ER, a circumstance, he argues, that can raise a reasonable doubt. He relies on People v. Sears (1970) 2 Cal.3d 180, 189, which held that a jury may consider "lack of furtiveness" in determining the defendant's state of mind. He concludes that his conviction amounted to a finding of guilt by association, a "discredited doctrine." (People v. Chambers (1964) 231 Cal.App.2d 23, 28.)
In short, Aleman has cast the facts in the light most favorable to his position, has omitted the facts that cannot be so viewed, and has drawn inferences only in his favor. As respondent points out, however, "[t]he focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on "'isolated bits of evidence."' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 261, quoting People v. Johnson, supra, 26 Cal.3d at p. 577.) Further, Aleman's position that the cited evidence can reasonably be reconciled with a finding of innocence does not justify reversal, if it can also reasonably be reconciled with guilt. (See People v. Stanley (1995) 10 Cal.4th 764, 792-793.) The test on appeal is not, as Aleman suggests, whether guilt was established beyond a reasonable doubt, but whether substantial evidence supports the jury's conclusion. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
On appeal, we must review the whole record in the light most favorable to the judgment, rather than Aleman's argument. (People v. Johnson, supra, 26 Cal.3d at p. 578.) Relevant circumstances include defendant's conduct before and after the offense. (See In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Aleman's ownership of the Honda, his purchase of the Honda in a false name, and his behavior at the hospital, all indicate his involvement in the robbery. Aleman arrived with Guillen at the hospital less than an hour after the murder. He was armed, and had the keys to Leyva's Produce in his pocket. The temporary dealer plates placed over the permanent license plates of Aleman's car could have no other purpose than to prevent tracing the car to its owner -- Aleman. The cell phone Guillen called moments before killing Leyva was found in Aleman's pocket, and records for that cell phone showed contact with Reyes's cell phone between 2:00 and 3:00 p.m. and 6:00 to 7:00 p.m. The records also showed contact with Jimenez's and Guillen's phones between 4:47 and 5:11 p.m. Finally, when the police detained Aleman, he gave them a false name, implying a consciousness of guilt. (See People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 97; People v. Manson (1976) 61 Cal.App.3d 102, 149.)
In his reply brief, Aleman suggests that the United States Supreme Court disapproved of inferring guilt from the use of a false name in Alberty v. U.S. (1896) 162 U.S. 499. It did not; instead, it disapproved of instructing the jury that using a false name was tantamount to a confession. (Id. at p. 511.)
We do not agree that such facts prove guilt only by association. Aleman's contacts with his codefendants just before and after the killing were relevant circumstances to be considered by the jury. (See People v. Miranda (2011) 192 Cal.App.4th 398, 407.) Nor do we agree with Aleman's contention that the evidence merely raised a strong suspicion of his guilt. The knowledge and intent of an aider and abettor are rarely susceptible of direct proof, and must be established by circumstantial evidence. (See Beeman, supra, 35 Cal.3d at pp. 558-560.) The presence of the white Honda near the store prior to the robbery and its use as the getaway car, the cell phone calls prior to and during the robbery, Aleman's possession of the store keys and a gun, and his conduct at the hospital, were indeed suspicious, but not merely so. We conclude that such evidence was sufficient to support the jury's finding that Aleman was aware of his codefendants' unlawful purpose of committing an armed burglary or robbery, that he formed the intent to advise or encourage its commission prior to or during the robbery. (See § 31; Cooper, supra, 53 Cal.3d at pp. 1164-1165.)
2. No Error in Giving CALCRIM No. 220
Aleman contends that his right to due process under the federal and state Constitutions was violated when the court instructed the jury that "[t]he evidence need not eliminate all possible doubt . . . ." (CALCRIM No. 220 (Rev. 2006).)
CALCRIM No. 220 is derived from section 1096, and is similar to CALJIC No. 2.90. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238-1239.) Section 1096 provides that reasonable doubt "'is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt.'" The trial court read CALCRIM No. 220 as follows: "The fact that a criminal charge has been filed against a defendant is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
As authority for his contention, Aleman refers to Victor v. Nebraska (1994) 511 U.S. 1, 19-20 (Victor), which does not support his position. In fact, the United States Supreme Court rejected a constitutional challenge to language similar to the phrase challenged by Aleman, because instructing the jury that "a reasonable doubt is 'not a mere possible doubt'" was clarified by the phrase, "which notes that everything 'is open to some possible or imaginary doubt.'" (Id. at pp. 17-18.) CALCRIM No. 220 contains a similar explanation: "The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." Citing Victor, the California Supreme Court rejected a similar challenge after finding "no reasonable likelihood that the instruction . . . led the jury to believe that it could not acquit defendant even if it had a possible doubt as to his guilt." (People v. Cash (2002) 28 Cal.4th 703, 740.) We conclude that the use of CALCRIM No. 220 was not error and did not deprive defendant of due process.
C. Reyes's Appeal
1. Substantial Evidence Supports Reyes's Conviction
Reyes contends that substantial evidence did not establish his guilt as an aider and abettor. His contention lacks merit.
An aider and abettor is one who, acting with the knowledge of the unlawful purpose of the perpetrator, and intending to commit, encourage or facilitate the commission of the crime, aids, promotes, encourages or instigates its commission. (Beeman, supra, 35 Cal.3d at p. 561.) Factors relevant to determining whether substantial evidence supports a finding that defendant was an aider and abettor include his presence at the scene, companionship, and conduct before or after the offense. (People v. Miranda, supra, 192 Cal.App.4th at p. 407.)
It need not be shown that the defendant personally participated in the crime, only that he was "concerned" in its commission. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) Thus, the defendant's conduct need not have been a substantial factor in the commission of the offense, and his concern in the crime may have been slight. (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743.)
Reyes acknowledges that the prosecution presented evidence of the following facts: Reyes was outside the store two hours before the murder, and a truck resembling his truck drove by the store; the getaway driver appeared to be wearing a yellow shirt; he purchased a carton of coconut water of the same brand found in the Honda that day; a call was made from Reyes's cell phone to Aleman's at approximately 3:00 p.m.; and approximately $14,000 was found in a search of Reyes's home, including two $50 bills with Guillen's blood on it.
Reyes contends that this evidence was insufficient because his actions could be reconciled with innocent activity, and the getaway driver could have been someone else in a yellow shirt. Further, Reyes argues, Guillen's blood on the money merely proved that Guillen had touched it at some time, not that it was loot from the robbery. He argues that the cash found in his home was not shown to be the loot, because it was only a fraction of the amount probably stolen, which Sawyer testified may have been about $80,000 to $90,000. He argues the money could have been payment for his construction work, a gift from his family, or winnings from gambling. Reyes concludes that the evidence "did not rise to the level of proof . . . beyond a reasonable doubt."
"[I]t is the jury, not the appellate court, which must be convinced of [defendant's] guilt beyond a reasonable doubt. [Citation.]" (People v. Millwee (1998) 18 Cal.4th 96, 132.) Showing that the evidence can reasonably be reconciled with a finding of innocence does not justify a reversal, unless the evidence cannot reasonably be reconciled with guilt. (People v. Stanley, supra, 10 Cal.4th at pp. 792-793.) In reviewing the evidence, our task is not to reweigh the evidence or determine whether there are conflicting inferences that may reasonably be drawn in defendant's favor. (People v. Yeoman (2003) 31 Cal.4th 93, 128.) Our task is to review the whole record for "evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson, supra, 26 Cal.3d at p. 578.)
We cannot ignore the $14,000 found in Reyes's home as easily as Reyes does. Although some of it was found in a safe, a larger amount, $12,000, was hidden under a dresser drawer. It was established that Guillen bled during the robbery, and the bills with Guillen's blood on them were among those hidden under the dresser. Such facts give rise, not simply to a reasonable inference, but to a compelling inference that the cash hidden under the dresser was at least part of the money that had been stolen from Leyva's Produce during the robbery.
"Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.]" (People v. McFarland (1962) 58 Cal.2d 748, 754 (McFarland).) Ample corroboration was present in this case in the evidence Reyes acknowledges here: the presence of his truck in the area, his call to Aleman, and his presence with Guillen and Jimenez inside the store two hours before the murder; the getaway driver's yellow clothing; and his purchase of the same brand of coconut water found in the Honda. We conclude that the evidence cited by Reyes, when considered with his possession of money stolen during the robbery, sufficiently supports the finding that he aided and abetted the crimes of his codefendants.
2. No Error in Admitting Autopsy Photograph
Reyes contends that the trial court abused its discretion in admitting an autopsy photograph that showed a bullet trajectory rod through the victim's skull.
"The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court's exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.)
Reyes argues that the photograph was irrelevant because there was no dispute about the cause of death, once the medical examiner testified. He also argues that there was no dispute regarding the circumstances of the crime or the fact that the victim died as a result of the actions of Jimenez and Guillen, and thus no further proof was required. He relies on People v. Poggi (1988) 45 Cal.3d 306, 322-323, in which the defendant's proffered stipulation, that the victim was a human being and died as a result of the attack of which the defendant was accused, rendered the stipulated facts undisputed. Thus, the challenged photographs were unnecessary. (Ibid.)
Reyes's reliance on such authority is misplaced. He offered no stipulation regarding any element of the offense, the circumstances of the crime, or the cause of death. "In a prosecution for murder, photographs of the murder victim and the crime scene are always relevant to prove how the charged crime occurred, and the prosecution is 'not obliged to prove these details solely from the testimony of live witnesses.' [Citation.]" (People v. Pollock (2004) 32 Cal.4th 1153, 1170.)
Here, the trajectory of the bullet clarified and corroborated what was seen in the surveillance video, an execution-style shooting of the victim in the head at close range, while the shooter was standing over the immobilized victim. Such corroboration was relevant to the prosecutor's alternate theory that Reyes aided and abetted a willful, deliberate, premeditated murder.
The autopsy photograph was also properly admitted to illustrate and clarify the medical examiner's testimony. (See People v. Ramirez (2006) 39 Cal.4th 398, 453.) The photograph illustrated her opinion that the leg wound, although potentially fatal, was not the cause of death which was rather a bullet that passed through the victim's brain. "[T]he jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case. [Citations.]" (People v. Gurule (2002) 28 Cal.4th 557, 624.)
We conclude that the photograph was relevant. Because we have examined the photograph and do not find it to be so gruesome as to overcome the jury's rationality, we also conclude that the probative value of the photograph was not substantially outweighed by its prejudicial effect. (See People v. Hoyos (2007) 41 Cal.4th 872, 908909.) The photograph is very unpleasant, but "'murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant . . . .'" (People v. Pierce (1979) 24 Cal.3d 199, 211, quoting People v. Long (1974) 38 Cal.App.3d 680, 689.)
3. No. 376 Correctly States the Law
Reyes contends that No. 376 is an incorrect statement of law, and that the trial court thus erred in instructing the jury with it.
As given here, No. 376 instructs:
"If you conclude that a defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant based on those facts alone. However, if you also find
that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery.
"The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery.
"Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Reyes points out that the language of No. 376 is derived from the common law inference of guilt from unexplained possession of recently stolen property. (See Barnes v. U.S. (1973) 412 U.S. 837, 843-844.) He contends that the inference of guilt arises from possession of recently stolen property only if the possession was unexplained. No. 376 is erroneous, Reyes argues, because it does not instruct the jury that the guilt may not be based upon the inference, unless the jury also found that there was no satisfactory explanation for the possession.
We rejected such a contention in People v. O'Dell (2007) 153 Cal.App.4th 1569, 1573-1576 (O'Dell), where we pointed out that other suspicious circumstances accompanying the possession will also give rise to an inference of guilt of a theft-related crime. (Id. at p. 1575, citing McFarland, supra, 58 Cal.2d at p. 754.) As our high court explained in McFarland, "[p]ossession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.]" (McFarland, supra, at p. 754; see also O'Dell, supra, at p. 1574.)
Reyes acknowledges, but fails to discuss O'Dell, and he cites no authority directly supporting his position. We find the reasoning of O'Dell applicable here, and thus reject Reyes's challenge to No. 376.
4. "Equally Guilty" Language of No. 400 was Harmless
Reyes contends that No. 400 misstated the law. The trial court instructed with No. 400 as it read at the time of trial: "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 or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it."
The "equally guilty" language has since been removed from No. 400.
Relying on People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), and People v. Woods (1992) 8 Cal.App.4th 1570 (Woods), Reyes contends that the "equally guilty" language is erroneous because it required the jury to find him guilty of the same degree of murder as the perpetrator, whereas it is possible for an aider and abettor to have a mental state different from the perpetrator's.
Neither McCoy nor Woods involved an instruction with the language challenged here. In McCoy, the California Supreme Court held that "when the charged offense and the intended offense -- murder or attempted murder -- are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, . . . the aider and abettor must know and share the murderous intent of the actual perpetrator." (McCoy, supra, 25 Cal.4th at p. 1118 & fn. 1.) In Woods, the appellate court held that where a lesser, but not the greater, offense is a reasonably foreseeable consequence of the crime originally aided and abetted, the trial court must instruct the jury that it may find a defendant guilty of the lesser offense, even if it determined the perpetrator was guilty of the greater. (Woods, supra, 8 Cal.App.4th at pp. 1585-1588.)
Reyes contends that the "equally guilty" language could have caused the jury to conclude, upon finding that Guillen or Jimenez intended to kill Leyva, that Reyes was guilty of first degree murder, even if he "did not intend to kill and was far less culpable." His argument suggests that if the jury had been permitted to find that he had a different mental state, it might have found him guilty of a different or lesser degree of homicide than the perpetrator.
The instruction, with its "equally guilty" language, may be misleading in some cases, and thus subject to modification or clarification upon request. (People v. Nero (2010) 181 Cal.App.4th 504, 518; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) As Reyes failed to make such a request in the trial court, he has forfeited this contention. (Samaniego, supra, at p. 1163.)
In any event, as respondent notes, the issue of what degree of murder Reyes committed was determined under other, correct instructions regarding robbery and felony murder -- instructions defendant has not challenged. The jury found true the special circumstance that Reyes was engaged in the commission of a robbery when Leyva was murdered, and convicted him of robbery and burglary. The murder was necessarily murder in the first degree, regardless of Reyes's mental state regarding the killing. (§ 189; see People v. Chun (2009) 45 Cal.4th 1172, 1182 [felony murder]; People v. Prettyman, supra, 14 Cal.4th at p. 262 [natural and probable consequences].)
As the murder would be in the first degree regardless of the "equally guilty" language in No. 400, its inclusion was harmless beyond a reasonable doubt under the test of Chapman v. California (1967) 386 U.S. 18, 24, and Neder v. U.S. (1999) 527 U.S. 1, 15. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.)
5. No Error in Giving Nos. 700 and 704
Reyes contends that No. 700 was incomplete and misleading because the final sentence of the instruction tells the jury, "In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree," but does not make clear on what the jury must agree.
Reyes also faults No. 704, by which the trial court instructed the jury: "Before you may rely on circumstantial evidence to conclude that a special circumstance allegation is true, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." He suggests that it does not properly define the burden of proof.
The identical arguments were rejected in People v. Felix (2008) 160 Cal.App.4th 849, 860-862 (Felix). Reyes acknowledges this authority in a footnote, but has made no attempt to distinguish it, and has cited no authority that directly supports his contentions.
We agree with the Felix court that the final sentence of No. 700 is clear when read in context with the entirety of the instruction. (Felix, supra, 160 Cal.App.4th at p. 860.)As in Felix, the jury was given CALCRIM No. 220, regarding the burden of proof, the presumption of innocence, and reasonable doubt, as well as CALCRIM No. 3550, regarding the juror's duties in deliberations, which sufficiently clarified the nature of the jury's agreement required by No. 700. (Felix, supra, at p. 861.)
As given here, No. 700, states: "If you find the defendant guilty of first degree murder, you must also decide whether the People have proved that the special circumstance of murder during commission of [a] robbery is true. [¶] The People have the burden of proving the special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. [¶] In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree."
Further, as noted in Felix, No. 704 is not meant to define reasonable doubt or the burden of proof; CALCRIM No. 220 accomplishes that task. (Felix, supra, 160 Cal.App.4th at p. 862; see also People v. Anderson (2007) 152 Cal.App.4th 919, 934 [addressing a similar challenge to CALCRIM No. 224].)
Reyes concedes that CALCRIM No. 220 accurately defined the burden of proof for the jury. However, relying on Carella v. California (1989) 491 U.S. 263, and Francis v. Franklin (1985) 471 U.S. 307, he contends that reversal is nevertheless required. Neither authority dealt with CALCRIM No. 220 or 704, and neither held that language such as that found in No. 704 requires reversal per se.
We agree with the reasoning of Felix that the burden of proof was adequately stated in CALCRIM No. 220, and it was unnecessary to restate it within No. 704. (Felix, supra, 160 Cal.App.4th at pp. 861-862.)
III. Jimenez's Appeal
A. Additional Evidence Adduced in the Jimenez Trial
Detective Terrazas interviewed Jimenez in Spanish on June 2, 2008, and recorded the interview. The recording was played for the jury, and a transcript with translation was admitted into evidence. Detective Terrazas identified the third voice heard occasionally in the recording as his partner, Detective Sandoval.
After Jimenez waived his Miranda rights, he recounted the events of the day of the murder, which he spent with "Gordo," "Bicho," and "Primo." Shown photographs of Aleman, Guillen, and Reyes, Jimenez identified Aleman as Gordo, Guillen as Bicho, and Reyes as Primo, whom he called "Compa" at first.
See Miranda v. Arizona (1966) 384 U.S. 436.
Jimenez and Aleman traveled in Aleman's white Honda to a house on Virgil Avenue near Fountain Avenue, where they met Guillen and Reyes. Reyes had an old, gray pickup truck with a ring of red on it. From there they all went downtown to a warehouse where Reyes said they would all hide inside, wait for the store to close, and then "rob" it. Jimenez and Guillen hid among boxes in a bathroom until Aleman telephoned Guillen and gave them the go-ahead.
Jimenez and Guillen both carried guns. Jimenez described his gun as a small semiautomatic handgun, and Guillen's gun as a large automatic pistol. He claimed that he was not familiar with guns and that Reyes had given it to him when they entered the store.
Jimenez acknowledged that the police had found a revolver when they searched his house, but he claimed that it belonged to a friend.
When Jimenez and Guillen saw the owner and a woman counting money in the office, Guillen sneaked in and jumped the man, and Jimenez started bagging the money. At some point, Jimenez accidentally fired his gun twice, hitting the wall and Guillen. After Guillen took the owner out to open the front door, Jimenez heard gunshots outside the office. When Jimenez left the office, he saw someone on the floor, and immediately left the store.
B. Substantial Evidence Supported the Special Circumstance Finding
Jimenez contends that the evidence was insufficient to support the "reckless indifference" element of section 190.2, subdivision (d), which provides for a sentence of LWOP for "[e]very person, not the actual killer, who, with reckless indifference to human life and as a major participant," is convicted of first degree murder as an aider and abettor of a robbery or burglary which results in the death of another. (See also § 190.2, subds. (a)(17)(A) & (G), (b), (c).)
Section 190.2, subdivision (d), was adopted to conform California law to the ruling in Tison v. Arizona (1987) 481 U.S. 137 (Tison), regarding capital punishment for persons convicted of felony murder. (People v. Mora (1995) 39 Cal.App.4th 607, 616.) Tison held that states may impose capital punishment on a person who was not the actual killer and did not actually intend to kill, but who was a major participant in the underlying felony resulting in the death, if he acted with reckless indifference to human life. (Tison, supra, at pp. 152, 158.) „"[R]eckless indifference to human life,"' is shown by a "subjective awareness of the grave risk to human life created by [the defendant's] participation in the underlying felony." (People v. Estrada (1995) 11 Cal.4th 568, 578.)
Jimenez argues that to show he was subjectively aware of the grave risk to human life when he participated in the robbery, the prosecution was required to show that he had some prior experience with robberies or guns. He illustrates his argument with several vehicular murder cases in which the prosecution sought to prove implied malice with evidence that the defendant had previously been informed of the dangers of driving while intoxicated. (See, e.g., People v. Murray (1990) 225 Cal.App.3d 734, 744-745 [three prior convictions of drunk driving (DUI) and alcohol-related reckless driving, completion of mandatory program]; People v. Brogna (1988) 202 Cal.App.3d 700, 706-707 [two prior DUI convictions and participation in programs]; People v. McCarnes (1986) 179 Cal.App.3d 525, 532 [same].) Jimenez compares the required mental state to implied malice in vehicular murder cases, which requires a finding that the defendant actually appreciated the risk involved, but acted nonetheless with a deliberate and conscious disregard for life. (People v. Watson (1981) 30 Cal.3d 290, 296.)
None of the cited cases required evidence of prior experience with the charged offense, or suggested that prior experience was the only evidence admissible to prove the defendant's mental state. Rather they held that the trial court had not erred in admitting such evidence over the defendant's objection. (People v. Murray, supra, 225 Cal.App.3d at p. 744; People v. Brogna, supra, 202 Cal.App.3d at p. 706; People v. McCarnes, supra, 179 Cal.App.3d at p. 532.)
Our review is not so restricted. We test the sufficiency of the evidence to support a special circumstance finding under the same standard as any substantial evidence challenge. (People v. Hodgson (2003) 111 Cal.App.4th 566, 578.) Thus, we view the evidence in the context of the whole record and in the light most favorable to the judgment, presuming in favor of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (Ibid.) "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.]" (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
The same evidence establishing that the defendant was a major participant in the crime can provide evidence of a reckless indifference to human life. (Tison, supra, 481 U.S. at p. 158, fn. 12.) As the court observed in Tison, the "two requirements . . . often overlap. For example, . . . there are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life. Moreover, even in cases where the fact that the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding." (Ibid.) Further, "the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life." (Id. at p.153.)
Jimenez concedes that he was a major participant in the robbery, but argues that there was no evidence that he was subjectively aware of the grave risk to human life in committing an armed robbery. We disagree. Viewing the evidence in the light most favorable to the jury's finding, Jimenez's reckless indifference was shown by evidence that he armed himself with a gun prior to entering the warehouse, and came out of hiding immediately after the store closed, before all employees had time to leave. Jimenez claimed to have had no experience with guns and to have fired accidently. However, he used his weapon to help Guillen subdue the victims and after he shot Guillen, Jimenez continued to gather up the money in the office. Most telling, after Guillen shot Leyva in the leg, Jimenez continued to gather money even though Leyva lay bleeding on the floor. Jimenez then fled past the mortally wounded Leyva, leaving him to die, without attempting to staunch the bleeding, or summoning medical help.
Failing to aid a mortally wounded victim, while fleeing or continuing to assist in an armed robbery, shows a reckless indifference to life. (See People v. Smith (2005) 135 Cal.App.4th 914, 927-928 [defendant acted as lookout while accomplice murdered victim, then fled with accomplice without assisting victim or summoning help]; People v. Hodgson, supra, 111 Cal.App.4th at pp. 578-580 [defendant facilitated escape of fellow gang member, who had just shot and robbed victim]; People v. Proby (1998) 60 Cal.App.4th 922, 929-930 [defendant provided guns for armed robbery, made no attempt to help victim shot by accomplice]; People v. Mora, supra, 39 Cal.App.4th at p. 617 [defendant arranged accomplice's entry with rifle, did not attempt to aid the victim after accomplice shot him, continued to steal victim's drugs, personally carried away the loot, and left victim to die, after threatening other victim]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1751-1755 [defendant planned robbery with accomplice; defendant entered restroom alone and unarmed to rob victim, knowing accomplice was waiting outside with knife; when victim resisted, accomplice ran in and stabbed her; defendant fled with accomplice and robbery loot, leaving victim to die].)
Jimenez contends that such cases are distinguishable, arguing that the evidence failed to prove that he subjectively appreciated the risk of his crimes because the majority of robberies do not result in death; there was no evidence that he had previously participated in a robbery; and his behavior did not suggest he intended to commit a murder in that he fired his gun accidentally; and he did not supply Guillen's weapon. Further, he claims that the shooting of Leyva was a "senseless act of violence" that happened too quickly for him to prevent it and that the nature of Leyva's wound made it impossible for him to render assistance.
We reject Jimenez's attempt to recast the evidence in the light most favorable to his arguments. Guillen had incapacitated Leyva by shooting him in the leg, prompting no reaction by Jimenez, and then Guillen executed Leyva after speaking to Aleman by telephone, thus suggesting that the shooting was neither senseless nor impulsive. We also reject Jimenez's claim that he knew there was nothing he could do for Leyva. The evidence showed that he made no attempt to make that determination or to summon help. We conclude that substantial evidence supported the jury's finding that Jimenez acted with reckless indifference to human life.
C. Section 12022.53 Enhancements Imposed on Count 3 Will be Stricken
Jimenez contends that the true findings and enhancements must be stricken from count 3 because section 12022.53 enhancements did not apply to burglary. Respondent concedes that the enhancements should be stricken. We agree.
The jury found true the special allegation in count 3 that Jimenez personally used a firearm and personally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c), respectively. The trial court imposed, but stayed, the enhancements ordinarily required by those provisions. Section 12022.53 provides in subdivisions (b) and (c) for sentence enhancements to be imposed upon persons convicted of certain felonies, enumerated in section 12022.53, subdivision (a). As commercial burglary is not among the enumerated felonies, the enhancements were unauthorized.
An unauthorized sentence is subject to correction when it comes to the attention of the reviewing court. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256; cf. People v. Smith (2001) 24 Cal.4th 849, 852-853.) The true finding on an erroneously charged special allegation should be stricken. (See People v. Halvorsen (2007) 42 Cal.4th 379, 422 [superfluous second special circumstance].) Where there is no need for the trial court to exercise discretion, remand is unnecessary. (People v. Ross (1994) 28 Cal.App.4th 1151, 1160.) We shall therefore vacate the true findings on the special allegations in count 3, and strike the allegations and the unauthorized enhancements.
The trial court similarly imposed, but stayed, enhancements under section 12022.53, subdivisions (b) and (d), on Guillen's count 3 sentence. As Guillen has generally joined in the arguments of codefendants, we shall strike those enhancements and true findings, as well.
DISPOSITION
The judgments against Aleman and Reyes are affirmed. The true findings as to the enhancements specially alleged pursuant to section 12022.53 against Guillen and Jimenez in count 3 are vacated, the allegations are stricken, and the sentence enhancements imposed as a result of the true findings are stricken. Except as so modified, the judgments against Guillen and Jimenez are affirmed. The trial court is directed to prepare amended abstracts of judgment for Guillen and Jimenez reflecting the modification, and to forward certified copies to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________________ , J.
CHAVEZ
We concur:
________________________________ , P. J.
BOREN
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ASHMANN-GERST