Opinion
D055043 Super. Ct. No. SCE266559 D059644
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANKO BERNAL et al., Defendants and Appellants. In re FRANKO BERNAL on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from judgments of the Superior Court of San Diego County and a petition for habeas corpus, Allan J. Preckel, Judge. Judgments affirmed; petition denied.
In one trial separate juries convicted Samuel Thomas McCauley, as the perpetrator, and Franko Bernal, as the aider and abettor, of two counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189; counts 1 and 2), premeditated attempted murder (§§187, subd. (a), 189, 669; count 3), and robbery (§ 211; count 4). Bernal's jury also convicted him of attempted robbery (§§ 211, 664; count 5).
Further statutory references are also to the Penal Code unless otherwise specified.
Additionally, McCauley's jury found true the enhancements that he personally used a firearm (§ 12022.53, subd. (d)) and inflicted great bodily injury (§ 12022.7, subd. (a)), and the special circumstances of multiple murder (§ 190.2, subd. (a)(3)) and murder during the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A) & (G)). Bernal's jury found true the enhancement that he vicariously used a firearm (§ 12022, subd. (a)(1)), and the special circumstances of multiple murder (§ 190.2, subd. (a)(3)) and murder during the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A) & (G)).
The court sentenced McCauley to two concurrent terms of life without the possibility of parole (counts 1 & 2), one concurrent term of life with the possibility of parole (count 3), and three concurrent terms of 25 years to life for the firearm enhancements, to be served consecutively to the three life terms. The court stayed the term for count 4 (§ 654). The court sentenced Bernal to two concurrent terms of life without the possibility of parole plus one year (counts 1 & 2), and one concurrent term of life with the possibility of parole plus one year (count 3). The court stayed the terms on counts 4 and 5 (§ 654).
On appeal, McCauley contends the court erred by denying his motion for a judgment of acquittal on count 1, as there is insufficient evidence of malice aforethought or premeditation and deliberation; refusing to instruct the jury on voluntary manslaughter as a lesser included offense of count 1; and admitting irrelevant or unduly prejudicial character evidence. Bernal contends the court erred by denying his motion for a judgment of acquittal on counts 1, 2, 3 and 5, as there is insufficient evidence of aiding and abetting; not instructing the jury on count 3 that to convict it must find premeditated murder, and not just murder, was a natural and probable consequence of the target crime of robbery; and admitting irrelevant or unduly prejudicial character evidence.
Bernal, in propria persona, has also filed a petition for writ of habeas corpus, which has been consolidated with this appeal. He contends the trial court erred by imposing a $10,000 restitution fine without considering his ability to pay.
We find no merit to defendants' positions. Thus, we affirm the judgments and deny the petition.
FACTUAL BACKGROUND
We recite the evidence in the light most favorable to the judgments. (People v. Avanessian (1999) 76 Cal.App.4th 635, 637.) A. Murrieta Murder
On Thanksgiving night, November 23, 2006, 18-year-old Duante Mercado-Bates went for a walk in his Murrieta neighborhood. He showed up at the clubhouse of an apartment complex about a mile and a half from his home, where a family was celebrating the holiday. The family allowed him to stay until around midnight and then offered him a ride home. He declined because he wanted to walk home and listen to music on his compact discs (CD's).
All further dates are also in 2006.
At about 6:30 a.m. on November 24, Mercado-Bates's dead body was found near his home lying in a planter area adjacent to a sidewalk. A video surveillance camera located approximately half a mile away showed him walking in that direction at about 12:20 a.m. His Sony Walkman and CD case were found with him. One of his hands clutched a bag of corn nuts and his mouth contained corn nuts.
Two expended .22-caliber bullet casings were collected near Mercado-Bates's body, and the cause of death was determined to be two gunshots to the chest. The shots entered his left side, indicating he was walking on the sidewalk and the shooter was standing in the adjacent street. No stippling of the wounds was present, indicating the shots were not fired at extremely close range. Neighboring residents reported hearing two gunshots and a loud car speeding away. B. Lemon Grove Murder, Attempted Murder, Robbery and Attempted Robbery
Early morning on November 25, Pedro Hernandez Vargas was on duty as a clerk at a 7-Eleven convenience store in Lemon Grove. Andre Villaverde was working at a business near the 7-Eleven. At around 2:00 a.m., Villaverde took a break and drove to the 7-Eleven. He entered the store and purchased some items, and as he was getting his change he heard the store door open. He turned to look and a man was pointing a gun at him. The man yelled, "All the money, all the money," and immediately shot Villaverde in the face. Villaverde stumbled back, threw his change toward the man and ran out of the store.
The man then shot Vargas three times in the chest, and yelled, "Give me the f—kin' money, dog. Open it, open it, open it . . . . Don't make me kill you, I don't wanna kill you." Vargas tried to speak, and the man responded, "I apologize homey.[] My bad, dog." Vargas moaned, and the man said, "Oh, shut up bitch. I didn't hurt you that bad." Vargas died from his wounds.
In the appellate record this slang term is also spelled "homie."
The gunman stole change from the cash register and some scratch-off lotto tickets. He also broke the glass on a locked cooler and stole some beer. He dropped a carton of beer and left it behind on the floor. He fled in a getaway car that had been driving back and forth outside the 7-Eleven with its headlights off during the two minutes he was inside the store. C. Evidence Tying Shootings Together and Implicating McCauley and Bernal
McCauley and Bernal were described as inseparable friends. McCauley was homeless and did not drive. Bernal drove a car with a paper license tag, a large dent in the driver's side door, and a sticker in the rear window that read, "I do fat bitches." Bernal owned a .22-caliber sawed-off rifle nicknamed the "Jack Sparrow." He commonly carried the gun in his car or the waistband of his pants. Bernal lived in Murrieta for about a year, ending in May.
The night of November 24, McCauley and Bernal went to a party in La Mesa. They appeared drunk. Krysta Martin, who knew both men, was also at the party. McCauley loudly bragged to Martin and other guests, "I killed someone in Murrieta last night." In response Bernal laughed and said, "Clack, clack, clack." Martin heard him and McCauley say that many times in the past to signify the sound of a gun.
Another partygoer, Kurt Miller, heard Bernal boast to guests, "Oh, yeah, we blasted this one guy," and, "I f—king killed this one. I'll blast this one kid." Miller also reported that Bernal lifted his shirt to expose a gun in the front waistband of his pants. Matthew Cruz was also at the party, and he saw what appeared to be a gun in McCauley's back waistband.
McCauley told another guest, Michael Trottier, that he had been in a fight with "some kid" in Los Angeles, the "guy kept getting up and getting up," and McCauley shot him. Trottier believed McCauley was talking about the previous night. Trottier described McCauley's demeanor as "[p]retty macho" and "[p]roud in a way."
The crimes at the 7-Eleven were caught on the store's audio-video surveillance system. The gunman's weapon was a .22-caliber short-barreled rifle. A forensic investigation shows that the four bullets fired at the 7-Eleven and the two bullets fired in Murrieta were from the same .22-caliber gun, and they were made by the same manufacturer.
Villaverde identified both McCauley and Bernal from photographic lineups. When Villaverde was on his way to the 7-Eleven the morning of November 24, a car was traveling slowly in front of him at a slow speed. The car's passenger door opened and a man tumbled out of the car. The car stopped, the passenger stood up and argued with the driver, and got back in the car. The car then drove away. The car had a paper tag rather than a license plate and a sticker in the back window that Villaverde recalled read, "I do fat chicks." When he fled the 7-Eleven after he was shot, Villaverde saw a similar car parked perpendicular to the painted parking spots, with a man standing near the open driver's door.
Villaverde identified Bernal as the gunman, but other evidence establishes McCauley was the gunman.
Gregorio Fernandez worked at an adult bookstore across the street from the 7-Eleven. Before the incident, Fernandez was outside on a break. He saw a car park on the street in front of the 7-Eleven. The driver was throwing items out of the car and the passenger was picking them up and returning them to the car. The men were arguing and yelling at each other. The passenger returned to the car and it drove off. Fernandez later heard and saw the same car speed by the 7-Eleven several times. The car had a sizable dent on the driver's side door.
Still later Fernandez saw the same car park in the 7-Eleven lot perpendicular to the marked parking spaces. Fearing trouble, he walked into the street to get a better look. The passenger partially got out of the car and bent toward the driver for several seconds. The passenger appeared to be holding something long in his right hand. He then entered the 7-Eleven and the driver remained in the car. The passenger immediately raised his hand, and Fernandez heard a gunshot and saw a flash. He heard more gunshots as he ran back to the bookstore, and he saw the car drive off.
Kevin Cave knew McCauley and Bernal through their mutual friend Michael Harpole. On Thanksgiving weekend, Cave was visiting Harpole when McCauley stopped by. Cave heard McCauley brag that he "robbed a 7-Eleven and that he shot somebody," and the day before in Murrieta he "robbed a kid for an iPod" and shot him. McCauley said that killing "got his rocks off." He also said his weapon was the "Jack Sparrow," Bernal was present when the shootings occurred, and in the Murrieta incident the victim "was walking on the street and they pulled over and shot him." McCauley did not appear regretful or remorseful. Instead, he was "upbeat."
McCauley's aunt, Johanna Kinkade, lived in Wyoming. A few days after Thanksgiving, he called her to ask for help. She arranged for a one-way bus ticket to Wyoming and he arrived there on December 1. Before his arrival, Kinkade learned authorities suspected he was involved in two murders in California. Kinkade questioned McCauley and he admitted "he had shot and killed somebody and then two days later he had shot two more people and one died." McCauley said a "homie" (Bernal) was involved as the driver, and the crimes were preceded by a week of binge drinking. When Kinkade asked McCauley why he shot the Murrieta victim, he responded, "No reason."
McCauley also told Kinkade that Bernal decided to rob the 7-Eleven, but McCauley got annoyed when Bernal kept driving his car back and forth in front of the store. After a confrontation, McCauley decided to "take over." He admitted to killing one person inside the 7-Eleven and to stealing money and beer.
Bernal's jury did not hear McCauley's comments about him.
Kinkade identified McCauley's voice on the 7-Eleven surveillance tape, and his father visually identified him from the tape. Further, McCauley's handprint was found on the carton of beer the gunman left behind at the 7-Eleven.
Cell phone records placed McCauley and Bernal together at the approximate time of and in the vicinity of the crimes. On November 24, at 12:32 and 12:33 a.m., two calls were made from Bernal's cell phone to Harpole, a friend of McCauley. Both calls were transmitted from a cell phone tower in Murrieta. At 12:34 a.m., McCauley used Bernal's cell phone to call his friend Willie Fansler. This call was transmitted from a cell phone tower in Temecula, which is south of Murrieta on I-15. McCauley told Fansler he was with Bernal and they were drunk.
At 2:56 a.m. on November 25, McCauley twice called Fansler using Bernal's cell phone. The calls were transmitted from cell phone towers in Chula Vista. At around 3:00 a.m. that day, Bernal checked into a motel in Chula Vista using his driver's license as identification. Bernal's cell phone records also show that between November 25 and 27, calls were made from his phone between the San Diego area and Las Vegas, and then back to the San Diego area.
Additionally, Bernal made recorded phone calls from jail. In one call, Harpole informed Bernal, "SWAT's invaded my house." Bernal responded, "I know, dog. My bad about that homey." In another call, Bernal and Harpole discussed Harpole's subpoena to testify at the preliminary hearing. Harpole could not recall what he had already told investigators, and he wanted Bernal to get him a copy of the discovery. Bernal encouraged Harpole to "plead the fifth" and not testify. Bernal told Harpole that McCauley was stupid for "crying and sobbing" when he turned himself in by his aunt's urging, because "if you're hardcore and . . . you can smoke people, homey, why you gonna cry and shit, homey?" Harpole replied, "So dog, you're just as stupid, Franko, you can't act like you're not. You know what I mean dog? As soon as that fool pulled the trigger once, you should have told that fool, 'No mas, homey. No mucho, homey." Bernal laughed and said, "You don't even know, homey," and "that mother f—ker's crazy, homey."
Brandy Geiger was Bernal's girlfriend between April and late October. Kristen McClung was Bernal's girlfriend at the time of the crimes. After his arrest, Bernal phoned Geiger and said he was with McClung when the crimes were committed and she was his alibi. He said, "I'm facing life," but "if she helps me out, I could . . . at least get, like . . . ." Bernal had not heard from McClung, and he wanted Geiger to give her his address. Geiger also visited Bernal in jail. During one visit, she wrote on a piece of paper, "Were you there?" and he wrote, "Yes." She then asked if he was the shooter and he said no.
Geiger contacted McClung and conveyed Bernal's claim he was with her when the 7-Eleven shootings occurred. McClung denied she was with Bernal at that time, and she refused to lie for him. She said she saw Bernal on November 24, before he went to the party in La Mesa, and she did not see him again until after the 7-Eleven shootings, when he told her he planned to leave town because "I did something really bad last night."
Bernal testified before both juries. He admitted he was present during the crimes. He drove himself and McCauley to Murrieta the night of November 23, so they could try to buy drugs from Bernal's dealer and find some of Bernal's female friends. He claimed that at some point he stopped on a residential street so he and McCauley could urinate. After they got out of the car, they separated. Bernal heard two gunshots and thought McCauley was shooting in the air or shooting out streetlights. Bernal ran back to the car, and as he pulled up to a corner McCauley jumped in. Bernal asked McCauley what he was doing, and McCauley said there was nothing to worry about. On November 25, after the party in La Mesa, Bernal drove McCauley to the 7-Eleven so he could get some beer. When McCauley came out of the store, he told Bernal he had robbed it. Bernal denied knowing McCauley planned to rob the store or that McCauley had shot anyone at the 7-Eleven.
DISCUSSION
I
Denial of McCauley's Motion
for Acquittal on Count 1
McCauley contends the court erred by denying his motion for acquittal at the close of the People's case-in-chief, insofar as it pertains to the first degree murder charge for the killing of Mercado-Bates in Murrieta. He asserts that at most the evidence supports a conviction of second degree murder or involuntary manslaughter.
The jury was instructed on first degree and second degree murder, but not on manslaughter.
In a jury trial, a defendant may move for acquittal of an offense at the close of either side's evidence "if the evidence then before the court is insufficient to sustain a conviction of such offense." (§ 1118.1.) The trial court applies the same test the appellate court applies "in reviewing a conviction for sufficiency of the evidence, namely, to determine whether from the evidence . . . , including reasonable inferences to be drawn therefrom, there is substantial evidence of the existence of every element of the offense charged." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) We independently review the court's ruling. (People v. Harris (2008) 43 Cal.4th 1269, 1286.)
"Murder is the unlawful killing of a human being with malice aforethought. [§ 187, subd. (a).] Malice may be either express or implied. It is express when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.] It is implied 'when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' " (People v. Blakeley (2000) 23 Cal.4th 82, 87.) "[J]uries should be instructed that malice is implied 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.' " (Ibid.) "There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
McCauley challenges the sufficiency of the prosecution evidence of malice aforethought. We conclude there is substantial evidence from which the jury could find implied malice. Mercado-Bates was walking alone on a dark sidewalk, listening to CD's and snacking on corn nuts. He did not know McCauley, and there is no indication he provoked McCauley. McCauley randomly chose Mercado-Bates as a victim. McCauley approached Mercado-Bates from the street, came within a few feet of him, aimed a .22-caliber sawed-off rifle at him, shot him in the chest, and then shot him again in the chest. A natural consequence of such conduct is death, and the jury could reasonably find that McCauley knew he was endangering life. The firing of a gun at someone at close range in a manner that inflicted mortal wounds supports an inference of intent to kill. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1436-1437; People v. Francisco (1994) 22 Cal.App.4th 1180, 1192.)
Additionally, McCauley challenges the sufficiency of the prosecution evidence to support a first degree murder conviction. A murder that is "willful, deliberate, and premeditated" is first degree murder. (§ 189.) " 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance.' " (People v. Harris, supra, 43 Cal.4th at p. 1286.)
McCauley relies on People v. Anderson (1968) 70 Cal.2d 15 (Anderson). Anderson identifies three categories of evidence used to address the issue of whether a defendant acted with deliberation and premeditation for purposes of first degree murder: (1) the defendant's prior planning activity; (2) the defendant's prior relationship with and/or conduct toward the victim to show motive; and (3) the manner of killing to show a "preconceived design" to kill. (Id. at pp. 26-27.)
Our Supreme Court has clarified that "[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way. [Citation.] Anderson identifies categories of evidence relevant to premeditation and deliberation that we 'typically' find sufficient to sustain convictions for first degree murder." (People v. Thomas (1992) 2 Cal.4th 489, 517; People v. Pride (1992) 3 Cal.4th 195, 247 [Anderson "does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive."].) We must affirm the court's ruling "if a rational trier of fact could find premeditation and deliberation beyond a reasonable doubt." (People v. Pride, supra, 3 Cal.4th at p. 247.)
We conclude the prosecution evidence of premeditation is substantial and it satisfies the Anderson categories. As to planning, evidence that a defendant brought a loaded gun to the scene " 'and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance.' " (People v. Adcox (1988) 47 Cal.3d 207, 240 (Adcox). In Adcox, there was evidence of premeditation when the defendant brought his loaded gun to the victim's position on a riverbank and shot him. (Ibid.)In People v. Miranda (1987) 44 Cal.3d 57, 87, the court held, "As to the first [Anderson] category, the fact that defendant brought his loaded gun into the store and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance." (See also People v. Williams (1995) 40 Cal.App.4th 446, 455.) Here, McCauley brought a loaded gun to Mercado-Bates's position on the sidewalk and shortly thereafter used it to kill him. The jury could reasonably determine the planning element was satisfied.
As to motive, "the law does not require that a first degree murderer have a 'rational' motive for killing . . . . [A]ny motive, 'shallow and distorted but, to the perpetrator, genuine' may be sufficient." (People v. Lunafelix (1985) 168 Cal.App.3d 97, 102.) McCauley admitted he shot a "kid" in Murrieta for his iPod and that the killing "got his rocks off." The jury could reasonably infer a "shallow and distorted" motive existed. Moreover, the jury was properly instructed, "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdicts you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
We disagree with McCauley's theory that his statements after the murder are irrelevant to show motive.
As to a preconceived design, "[i]t must be remembered that premeditation can occur in a short period of time." (People v. Francisco, supra, 22 Cal.App.4th at p. 1192.) " 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' " (People v. Perez, supra, 2 Cal.4th at p. 1127.) In People v. Francisco, supra, 22 Cal.App.4th at page 1192, the court held the manner of killing was indicative of premeditation when several shots were fired from a few feet away. The court explained, "At such close range, and with the number of shots fired, the inference could be made that the shooter was intent on inflicting death." (Ibid.; Anderson, supra, 70 Cal.2d at pp. 28-29.) McCauley shot Mercado-Bates twice in the chest from a few feet away, without any provocation, and McCauley bragged about the killing and the pleasure he derived from it. The evidence raises an inference of a preconceived design.
Contrary to McCauley's assertion, the jury could reasonably reject the theory there was an "an explosion of violence" in Murrieta rather than a preconceived design. (Anderson, supra, 70 Cal.2d at p. 28.) McCauley cites partygoer Trottier's testimony that McCauley claimed he was in a fight in Los Angeles, and McCauley "beat him [the victim] up pretty badly, and the guy was relentless, and [McCauley] just kept hitting him down and hitting him down." The forensic evidence, however, belies McCauley's theory.
A pathologist testified as follows: "He [Mercado-Bates] had a bruise to the left side of his forehead region. It was about an inch and a quarter, fairly large. He had an abrasion. An abrasion is when you fall down and scrape your knee. It's a scraping of the superficial layers of skin. He had an abrasion right above his left eyebrow, right to his cheekbone area, and then to his left ear." The pathologist explained, "More likely than not, this pattern of injuries that we see to the prominent features of the forehead, the eye, the ear, are most consistent with a fall" contemporaneous with the shooting. The pathologist also explained the injuries likely did not result from a fight. "People who are involved in a physical altercation usually have multiple injuries to both sides of the face, to the nose, to the orbits themselves. They get black eyes. We don't have that here." Further, Mercado-Bates died snacking on corn nuts and clutching a bag of corn nuts in one hand, activities the jury could find are inconsistent with an altercation and consistent with a surprise attack.
The court properly denied McCauley's motion for acquittal on count 1.
McCauley also raises a sufficiency of the evidence argument as to the state of the evidence after the close of all evidence. Our analysis is essentially the same for this argument. McCauley's defense evidence is unavailing, and Bernal's testimony further implicated McCauley. We also reject McCauley's assertion there is insufficient evidence he was the shooter in Murrieta. Bernal testified that McCauley was the shooter, and McCauley admitted he was the shooter to several people, including his aunt.
II
Denial of Request for Instructions
on Voluntary Manslaughter as Lesser Included Offense of Count 1
Additionally, McCauley contends the court erred by refusing to instruct the jury on involuntary manslaughter in the Murrieta shooting. He requested CALCRIM Nos. 570 (Voluntary Manslaughter: Heat of Passion) and 571 (Voluntary Manslaughter: Imperfect Self-Defense). He argued, "I think the jury can go back and decide that this was a fight that went wrong or maybe . . . we have somebody who is intoxicated and saw the other person fighting and thought he needed to defend him and there was some . . . type of imperfect self-defense."
Bernal joins in this argument.
A "trial court errs if it fails to instruct . . . on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) " 'Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense.' " (People v. Sakarias (2000) 22 Cal.4th 596, 620.) We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
" 'A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. (§ 192.)' " (People v. Breverman, supra, 19 Cal.4th at p. 153.) A " 'defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" (§ 192, subd. (a)), or when the defendant kills in "unreasonable self-defense"—the unreasonable but good faith belief in having to act in self-defense [citations].' [Citation.] Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation]." (People v. Breverman, supra, at pp. 153-154.)
We find no error, as the evidence does not support the requested instructions. Mercado-Bates did not know McCauley, and there is no evidence he provoked McCauley. Mercado-Bates was walking home alone, unarmed, listening to music and eating snacks when McCauley shot him from a few feet away. A finding of voluntary manslaughter would have to be based on sheer speculation.
McCauley again relies on Trottier's testimony that McCauley told him he was in a fight with someone in Los Angeles and he beat the person up and then shot him. As noted, however, the forensic evidence does not support the theory that McCauley was involved in an altercation with Mercado-Bates. The prosecution evidence shows Mercado-Bates's facial injuries were consistent with a fall contemporaneous with the shooting, and were not consistent with a physical altercation.
McCauley surmises the jury could have found there was a fight over Mercado-Bates's corn nuts. McCauley relies on testimony of defense witness Jerry Chisolm, a private criminalist. The prosecutor asked Chisolm whether Mercado-Bates's clutching of a bag of corn nuts in one hand was "consistent with somebody who has just suffered a trauma and they have clinched." Chisolm answered, "I have heard of that, yes. They could." Chisolm added that the bag of corn nuts "could be the point of contention between the two people and therefore he's not going to let go of them."
Chisolm's theory, however, is mere conjecture. He conceded there is no evidence of "any contention between anybody." Further, any fight over the bag of corn nuts would necessarily have been instigated by McCauley or Bernal. As this court has explained: "A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible." (People v. Oropeza (2007) 151 Cal.App.4th 73, 83; People v. Johnston (2003) 113 Cal.App.4th 1299, 1312.)
Given our holding, we are not required to consider the parties' positions on whether any instructional error was harmless.
III
Denial of Bernal's Motion for Acquittal
on Counts 1, 2, 3 and 5
At the close of the People's case-in-chief, Bernal moved under section 1118.1 for acquittal on counts 1 (murder of Mercado-Bates), 2 (murder of Vargas), 3 (premeditated attempted murder of Villaverde) and 5 (attempted robbery of Villaverde). Bernal contends the court erred by denying his motion, as there is insufficient evidence of aiding and abetting on these counts.
Bernal explains he did not move for acquittal on count 4 (robbery of Vargas) because he "drove McCauley from the scene with the beer McCauley stole, and Bernal could therefore be culpable of the robbery even without knowing in advance that McCauley intended to commit a robbery."
A
Count 1
"All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed." (§ 31.) "An aider and abettor 'must "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." [Citation.] The jury must find "the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . ." [Citations.]' [Citations.] In order for aiding and abetting liability to attach, the intent to render aid must be formed prior to or during commission of the offense." (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1501-1502; § 31.)
As to the Murrieta killing, the jury was instructed in part: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."
The prosecution evidence supports findings that Bernal provided McCauley transportation to and from the crime scene. Bernal stopped the car adjacent to the sidewalk where Mercado-Bates was walking alone in the dark. Bernal provided McCauley with a .22-caliber gun, and remained at the scene while McCauley got out of the car, aimed the gun at Mercado-Bates and shot him twice in the chest. That night, Bernal attended a party with McCauley and laughed when McCauley boasted to guests that he had shot someone in Murrieta. Bernal himself bragged to guests, "We blasted this one guy." Contrary to Bernal's claim, this is not the conduct of a bystander who had the misfortune of merely being present when McCauley alone decided to shoot Mercado- Bates. It is also not the conduct of someone uninvolved who merely failed to stop McCauley.
Bernal assails the credibility of Miller's testimony, but credibility is an issue for the jury. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)
"Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal responsibility." (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.)
Moreover, after the shooting, Bernal told his girlfriend he had done something bad and planned to leave town. After his arrest, Bernal tried to concoct a false alibi through his girlfriend, and he lied to authorities about his whereabouts and even knowing McCauley. In a phone conversation from jail, Bernal encouraged his friend Harpole to refuse to testify. The evidence is sufficient to sustain a conviction for aiding and abetting first degree murder. (See, e.g., In re Hardy (2007) 41 Cal.4th 977, 1030.)
B
Counts 2, 3 and 5
As to counts 2, 3 and 5, Bernal challenges the sufficiency of the prosecution evidence to show he had prior knowledge of McCauley's intent to commit robbery at the 7-Eleven. On counts 4 and 5, robbery of Vargas (not at issue on appeal) and attempted robbery of Villaverde, the jury was instructed with the intended crime theory of aiding and abetting cited in footnote 11, ante.
The prosecution evidence is sufficient to sustain a conviction on count 5. Bernal provided McCauley with transportation to and from the 7-Eleven. The day before, Bernal facilitated McCauley's murder of Mercado-Bates, and Bernal and McCauley bragged about the shooting at a party. Before stopping at the 7-Eleven, Bernal and McCauley drove by several times, indicating they were casing the store or trying to decide whether to proceed with a holdup. Bernal parked his car perpendicular to the marked spaces in the store's parking lot. McCauley partially exited the car and bent down to talk to Bernal, holding something long in his hand, indicating Bernal again provided McCauley with the "Jack Sparrow." Immediately after entering the store, McCauley aimed the gun at Villaverde, demanded money, and began shooting. Bernal drove his car back and forth in front of the store with its headlights off during the two minutes McCauley was inside. The jury could reasonably find Bernal knew of McCauley's intent to commit robbery and shared that intent. No legitimate reason appears to provide McCauley with a loaded gun at the 7-Eleven. To the contrary, Bernal knew McCauley used the gun the preceding day to commit a grievous crime.
Bernal argues there is no evidence he knew McCauley was armed when he got out of Bernal's car at the 7-Eleven. Bernal cites the testimony of Fernandez, who worked across the street from the 7-Eleven, that after McCauley partially exited Bernal's car, McCauley's "hand was raised, the right hand, because it came up above his back as he was hunched in the vehicle, and after that, he went inside of the store." Fernandez also testified that McCauley was holding something about the length of his forearm, and his "hand looked too wide and too long to be just his hand." Even if Bernal could not see McCauley's hand after he exited the car, the evidence is abundant that Bernal owned the "Jack Sparrow" and he customarily carried it in his car or the waistband of his pants. The jury could reasonably infer Bernal supplied McCauley with the gun, just as he did the day before when McCauley murdered Mercado-Bates.
With regard to counts 2 and 3, first degree murder of Vargas and premeditated attempted murder of Villaverde, the jury was instructed on the natural and probable consequences theory of aiding and abetting. "Under the natural and probable consequences doctrine, an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator. The defendant's knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. [Citation.] The elements of aider and abettor liability under this theory are: the defendant acted with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) the defendant by act or advice aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Miranda (2011) 192 Cal.App.4th 398, 407-408.)
" 'The issue "is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." [Citation.]' [Citation.] Resolution of the issue 'depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant.' " (People v. Miranda, supra, 192 Cal.App.4th at p. 408.)
The jury could reasonably find McCauley's shootings of Vargas and Villaverde were a foreseeable product of armed robbery and attempted robbery. "Crimes involving gun use have frequently been found to be a natural and probable consequence of robbery." (People v. Miranda, supra, 192 Cal.App.4th at p. 408 [attempted murder and assault with a firearm were natural and probable consequences of robbery]; People v. Bradley (2003) 111 Cal.App.4th 765, 768-769 [attempted murder was a natural and probable consequence of armed robbery]; People v. Hammond (1986) 181 Cal.App.3d 463, 468-469 [same].) "[M]urder is generally found to be a reasonably foreseeable result of a plan to commit robbery and/or burglary despite its contingent and less than certain potential." (People v. Nguyen, supra, 21 Cal.App.4th at p. 530.) Further, Bernal would have had actual knowledge of murder as the probable consequence of armed robbery, as McCauley mortally wounded Mercado-Bates a day earlier with two gunshots to the chest, using Bernal's gun. The court properly denied his motion for acquittal.
IV
Instructions on Count 3
Additionally, Bernal contends the court erred by not sua sponte instructing the jury that to convict him of the attempted premeditated murder of Villaverde on an aider and abettor theory, it was required to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery of Villaverde. There is a split of authority on the issue among appellate courts (see People v. Cummins (2005) 127 Cal.App.4th 667, 680-681 [as matter of first impression Second District, Division One, held trial court was not required to instruct jury it must find premeditated attempted murder was a natural and probable consequence of robbery or carjacking]; People v. Hart (2009) 176 Cal.App.4th 662, 672 [without considering People v. Cummins, Third District held trial court should have instructed the jury that attempted premeditated murder finding was required when under the facts it could reasonably find the actual perpetrator was guilty of attempted premeditated murder but aider and abettor was guilty of no more than attempted unpremeditated murder]). Our Supreme Court will resolve the conflict in the pending case of People v. Favor, review granted March 16, 2011, S0189317.
We are not required to address the instructional question because we conclude any arguable error was nonprejudicial. The asserted error on count 3 is akin to the failure to instruct sua sponte on a lesser included offense. (See People v. Hart, supra, 176 Cal.App.4th at p. 672 ["Attempted premeditated murder is the functional equivalent of a greater offense than attempted unpremeditated murder."].) Thus, we apply a harmless error standard of review under which "[r]eversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of." (People v. Rogers (2006) 39 Cal.4th 826, 867-868; People v. Breverman, supra, 19 Cal.4th at pp. 164-165.)
It is not reasonably probable the outcome would have been better for Bernal on count 3 absent the claimed instructional error. The jury found that the day before the 7-Eleven crimes, Bernal directly aided and abetted McCauley's first degree murder of Mercado-Bates. The jury also heard that before going to the 7-Eleven, McCauley and Bernal bragged at a party about the Murrieta killing, and Bernal laughed about it. Even with the instruction sought, the jury would likely have found as an objective matter that the attempted premeditated murder of Villaverde was a natural and probable consequence of McCauley's attempt to rob him.
V
Admission of Evidence
Both McCauley and Bernal contend the court improperly admitted portions of their pages from the MySpace social network Web site. They assert some of the information is irrelevant, and alternatively, any relevance is outweighed by undue prejudice.
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Relevant evidence may be excluded in the court's discretion "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) The trial court has wide discretion in ruling on evidentiary matters under Evidence Code sections 350 and 352. (People v. Geier (2007) 41 Cal.4th 555, 585.)
An investigator found McCauley's MySpace page under the site name of "Giggin McGiggster." The photo used for the site is of McCauley and Bernal standing closely together. The page also contains a message posted on November 22 from a "Big 'Dick' McGiggin," which states, "I have Dick on disco."
We omit some capitalization from the MySpace page citations. We do not note misspellings or errors in grammar or punctuation.
The investigator then found the page for the "Big Dick McGiggin" MySpace site and established it belonged to Bernal. The page received several birthday messages on Bernal's birth date, and it includes the same picture of McCauley and Bernal that was on McCauley's MySpace page, and a picture of Bernal with the tattoo "F—k A Bitch" on his chest. Bernal had lived in Murrieta, and under the heading "Groups," his page listed "Murrieta The-Murr-Town Down! ! !" and "Murrieta kr3w." The page received a message on November 24, approximately 14 hours after the Murrieta murder, from "Giggin McGiggster," which read, "Clack clack clack . . . call me."
Bernal objects to the MySpace page photo of his tattooed chest; false profile information that he was married, had graduated from college, had annual income of between $100,000 and $150,000, co-owned a company named "Nasty But Classie," and was involved as an actor and director in "Dripping Wet Movies"; the comments, " 'Cops' most wanted to see if Im on there I was on Real TV real shit and San Diego," and, "Funny my dear so f—k a bitch I need a ho"; and the November 24, 2006 message from McCauley. Bernal argues the evidence's "only real effect was to help the prosecutor try [him] for being an immature, obnoxious person, and presumably of a character more likely to participate in impulsive, meaningless violence."
McCauley likewise objects to the messages on his and Bernal's MySpace pages they sent to each other and to "immature, foul and offensive language" on McCauley's page such as, "I live like a rockstar running from the cop cars," and "I gig harder than you tell ya beezy to . . . fetch her track shoes," and "Females beezys hoes bitches tricks and muthaf—kas willing to pay for it."
We need not determine if there was abuse of discretion, because even if there was, neither defendant was prejudiced. A judgment shall not be reversed by reason of the erroneous admission of evidence unless the "errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353; Cal. Const., art. VI, § 13.) A "miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
In light of the voluminous evidence, we do not find the MySpace pages unduly inflammatory. The evidence of both defendants' guilt is overwhelming, and we are satisfied the outcome would not have been better for either defendant had the MySpace evidence been excluded. We find no likelihood defendants' offensive and immature language contributed to the jury's verdicts.
Given our holding, we are not required to address the parties' positions on the authenticity and reliability of the MySpace evidence. Further, we find no merit in McCauley's argument his judgment should be reversed for cumulative error.
VI
Restitution Fine
In his companion petition for writ of habeas corpus, Bernal contends the court erred by imposing a $10,000 restitution fine without considering his ability to pay. "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§ 1202.4, subd. (b).) The "Legislature intended restitution fines as punishment." (People v. Hanson (2000) 23 Cal.4th 355, 361.) "As with other types of fines, the money is deposited into the state treasury; it is earmarked for the Restitution Fund, which enables the state to compensate victims of crimes." (Id. at p. 362; § 1202.4, subd. (e).)
For a felony, the court has discretion to impose a restitution fine of between $200 and $10,000. (§ 1202.4, subd. (b)(1).) The court may set the fine by multiplying $200 by the number of years of imprisonment ordered and multiplying that number by the number of felony convictions. (§ 1202.4, subd. (b)(2).) In setting a restitution fine in excess of $200, the court "shall consider any relevant factors, including . . . the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, . . . and the number of victims involved in the crime." (§ 1202.4, subd. (d).) "Consideration of a defendant's inability to pay may include his or her future earning capacity," and a "defendant shall bear the burden of demonstrating his or her inability to pay." (Ibid.)
Bernal forfeited his claim by not objecting at his sentencing hearing. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409.) The probation report ordinarily recommends the amount of a restitution fine and addresses the defendant's ability to pay. (See People v. Hartley (1984) 163 Cal.App.3d 126, 130.) " '[T]he trial court is entitled to consider the probation report when determining the amount of restitution.' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) "Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion." (Ibid.)
Bernal has not provided a copy of his probation report with his petition, and he does not cite the record in the appeal to show it is included.
Moreover, Bernal's claim fails on the merits. The bare fact of impending incarceration does not necessarily show a defendant's inability to pay. (People v. Nelson, supra, 51 Cal.4th at p. 227.) Bernal does not " 'identify anything in the record indicating the trial court breached its duty to consider his ability to pay; as the trial court was not obligated to make express findings concerning his ability to pay, the absence of any findings does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its discretion.' " (Ibid., citing People v. Gamache, supra, 48 Cal.4th at p. 409.)
Because Bernal's claim lacks merit, we are not required to address his assertion he received ineffective assistance of counsel in relation to the restitution fine. Further, when, as here, " ' "the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel's reasons." ' " (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555.)
DISPOSITION
The judgments are affirmed. The petition for writ of habeas corpus is denied.
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MCCONNELL, P. J.
WE CONCUR:
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HUFFMAN, J.
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NARES, J.