Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA291921, David M. Mintz, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Appellant Rolando Medrano appeals from a judgment entered after a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a)). Appellant was sentenced to 25 years to life for the murder.
All further statutory references are to the Penal Code.
The jury deadlocked on the allegation that appellant personally used a deadly weapon to commit the murder pursuant to section 12022, subdivision (b)(1). The trial court declared a mistrial on the allegation and dismissed it.
CONTENTIONS
Appellant contends that: (1) the trial court erred in instructing the jury on the theory of aiding and abetting; (2) the trial court’s responses to the jury’s question on aiding and abetting were inadequate; (3) the trial court committed reversible error when it denied appellant’s motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (4) CALCRIM No. 220’s definition of reasonable doubt violated appellant’s federal due process right to have his guilt determined beyond a reasonable doubt; (5) CALCRIM No. 226 invited jurors to consider matters outside the record in violation of appellant’s rights to due process, a fair trial, and confrontation of witnesses; (6) the trial court committed reversible error when it failed to instruct the jury on the lesser included offense of voluntary manslaughter based on heat of passion; (7) the trial court’s failure to instruct the jury on the lesser offense of voluntary manslaughter deprived appellant of his rights to due process and a jury trial; (8) the trial court’s advisement to the jury that appellant was in custody deprived him of his rights to due process and equal protection.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following. On August 20, 2005, appellant, a member of the “Maniacs” gang, attended a quinceanera party for Beatriz Valle (Valle) at a church. During the party, appellant’s friend shouted out greetings on a microphone to various guests, making references to the “Maniacs” gang. Members of appellant’s gang got into arguments with Jose Duran (Duran) and one of his friends, Francisco Javier, also known as “Chico.” When Duran told appellant that he should not smoke marijuana at the party, appellant said “MNS” and Duran responded “Fuck MNS.” Duran intervened in another quarrel between Chico and one of appellant’s friends.
When the party was almost over, appellant and his friends began beating Chico and Duran. In the meantime, uninvited members of appellant’s gang had arrived and began throwing bottles. Someone pointed a knife at Duran, and another person threw bottles at him. Appellant and his friends chased Duran. Duran’s sister, Alondra, followed him as he ran past a parked car. She saw an associate of appellant’s gang who was sitting in the passenger seat stab Duran either in the lower back or below his left rib cage. Clutching his chest, Duran continued running and was chased by appellant through a parking lot to a grassy area. Appellant stabbed Duran between the abdomen and chest. Appellant pursued Duran to an alley where he continued stabbing him. Appellant twice said “I’m Mosco from Maniacs.” While holding a knife, appellant told a friend: “I already did this. Come on, let’s go.”
Appellant saw Duran’s mother and said: “I just fucked that dude up. There’s his mother.” One of appellant’s friends said that Duran’s mother would have to be killed. Appellant accosted Duran’s mother with a knife, but instead stabbed one of Duran’s friends who had stepped between appellant and the woman. Appellant changed his clothes, returned to the church, gave his clothes to Valle, and instructed her to tell police that he had been with her the entire night. Duran, who was taken to the hospital with a cut on his head and 12 stab wounds to his body, died of a stab wound to the chest. The nonfatal wounds may have hastened Duran’s death.
DISCUSSION
I. The evidence supported jury instructions on aiding and abetting
Appellant contends that the evidence did not support instructions on aiding and abetting, CALCRIM Nos. 400 and 401. We disagree.
CALCRIM No. 400 provides: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the ‘perpetrator.’ A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.”
“An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) The aider and abettor doctrine makes aiders and abettors liable for their accomplice’s actions as well as their own, obviating the necessity to decide who played which role. (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) If the evidence supports the conclusion that a witness is an accomplice, the trial court must so instruct the jury. (People v. Brown (2003) 31 Cal.4th 518, 555.) The trial court may give aiding and abetting instructions if the evidence shows that the defendant is guilty either as a direct perpetrator or as an aider and abettor. (People v. Staten (2000) 24 Cal.4th 434, 458-459.) Moreover, the jury need not decide unanimously whether the defendant was guilty as the aider and abettor or as the direct perpetrator. (People v. Santamaria (1994) 8 Cal.4th 903, 918-919.)
Here, the evidence was sufficient to support the aiding and abetting instructions. Appellant beat and chased Duran. As Duran ran past a parked car, an associate of appellant’s gang stabbed Duran. Duran staggered, clutched his chest, and continued to run. Appellant pursued him and repeatedly stabbed him. The evidence supports the inference that appellant caused the fatal wound as the direct perpetrator. It also supports the inference that if the passenger was the perpetrator of the fatal stab wound, appellant aided and abetted him by continuing to chase Duran and repeatedly stabbing him. Thus, the evidence supported the inference that appellant was either a direct perpetrator or an aider and abettor.
We conclude that the trial court did not err in giving jury instructions on aiding and abetting.
II. The trial court adequately responded to a jury question on aiding and abetting
Appellant contends that the trial court inadequately responded to the jury’s question of whether the People had to prove the existence of a perpetrator separately from the existence of the abettor. He claims that the trial court’s response was nonresponsive and implicitly incorrect. We do not agree.
Pursuant to section 1138, information must be given if requested by the jury regarding a point of law arising in the case. (§ 1138.) The trial court has the discretion to determine what additional explanations are sufficient and need not elaborate on the standard instructions if the original instructions are full and complete. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Our review of the record convinces us that the trial court did not abuse its discretion in answering the jury’s questions. The jury submitted a note during deliberations as follows: “Do the People have to provide the perpetrator in addition to and different from the aider and abettor? Reference section 401 page 6 jury instructions.” At the trial court’s request for clarification, the jury submitted the following note: “Can the defendant be found as an aider and abettor without certain knowledge of who the perpetrator is?” The trial court answered: “The defendant does not need to know the name of the perpetrator of the crime, but he does need to know that the perpetrator intended to commit the crime. Of course, all of the other requirements of instruction 401 relating to aiding and abetting must also be proven. And I’m going to reread that to you now.” The trial court then reinstructed the jury with CALCRIM No. 401.
The jury referred to CALCRIM No. 401, which provides: “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 or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.”
Later, the jury submitted a note with the following questions: (1) “If someone is an abettor, do the People have to prove there was the perpetrator (who committed the crime) and who is not the abettor?”; and (2) “What are examples of what constitutes sufficient proof of a perpetrator committing a crime?”
Rather than answering question No. 1 with a simple “yes,” as the defense requested, the trial court decided that by adding the clause “who is not the abettor,” the jury was asking whether the People had to prove beyond a reasonable doubt that appellant was either the perpetrator or the aider and abettor. The trial court then answered question No. 1 as follows: “A defendant may be found guilty of murder, either as a direct perpetrator or as an aider and abettor. If the jury finds that the defendant has been proven guilty of murder beyond a reasonable doubt, it is not necessary that the jury, or any individual juror, decide under which theory the defendant is guilty. If you have a reasonable doubt that the People have proven the defendant’s guilt, you must find him not guilty.” The trial court then allowed defense counsel to reopen closing argument and address question No. 1.
Appellant now contends that the trial court’s answer to question No. 1 was nonresponsive because it suggested there was no duty on the part of the People to prove the existence of a perpetrator of the crime aided and abetted by appellant. We disagree and conclude that the trial court’s interpretation of the jury’s question was reasonable because it had previously answered the jury’s initial question by stating that the People had the burden of proof of showing that the perpetrator committed the crime. That is, in response to the jury’s initial question regarding whether the defendant could be found as an aider and abettor without certain knowledge of who the perpetrator is, the trial court instructed the jury that in order to prove the defendant was guilty of aiding and abetting, the People had to prove that the perpetrator committed the crime, the defendant knew the perpetrator intended to commit the crime, the defendant intended to aid the perpetrator, and the defendant did aid and abet the perpetrator of the crime. Therefore, appellant’s argument that the trial court implied that the proof of a perpetrator was unnecessary to establish aiding and abetting must fail because there is no reasonable likelihood that in light of all the instructions viewed as a whole, the jury was actually misled. (People v. Mayfield (1997) 14 Cal.4th 668, 793.)
Any error was harmless because appellant has not shown prejudice, despite his assertions that the trial court invited a guilty verdict, and the trial court’s response failed to convey the People’s burden of proving aiding and abetting. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) The jury was fully instructed on the People’s burden of proof, and the evidence was overwhelming that appellant was either the perpetrator or aider and abettor.
III. Substantial evidence supports the trial court’s denial of appellant’s Wheeler motion
Appellant contends that defense counsel presented a prima facie showing of discrimination and that the People’s explanations for the peremptory challenges were pretextual. He contends that a comparative analysis of the voir dire of the prospective Hispanic jurors dismissed by the People with the voir dire of some non-Hispanic prospective jurors demonstrates that the People engaged in unlawful discrimination. We disagree.
Under Wheeler, the prosecutor’s use of peremptory challenges to exclude prospective jurors on the basis of group bias violates the defendant’s right to trial by jury from a representative cross-section of the community under article I, section 16 of the state Constitution, and the right to equal protection under the Fourteenth Amendment under Batson v. Kentucky (1986) 476 U.S. 79. (People v. Zambrano (2007) 41 Cal.4th 1082, 1104.)
In order to succeed on a Wheeler motion, the defendant must make a prima facie case by showing that the totality of relevant facts gives rise to an inference of a discriminatory purpose. (People v. Zambrano, supra, 41 Cal.4th at p. 1104.) “‘To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.’” (Johnson v. California (2005) 545 U.S. 162, 169.) The burden then shifts to the People to explain the racial exclusion by offering permissible race-neutral justifications for the peremptory strikes. (People v. Zambrano, supra, at p. 1104.) The trial court then decides whether the opponent of the strike has proved purposeful racial discrimination. (Ibid.) The party excusing the juror need only show a genuine race or group-neutral explanation. (People v. Ervin (2000) 22 Cal.4th 48, 74-75.) We review the trial court’s ruling for substantial evidence. (People v. Zambrano, supra, at p. 1104.)
Here, when the defense raised the Wheeler issue, the trial court asked the People whether it wanted to be heard on whether the defense had raised an inference, or if it simply wanted to explain its challenges. The trial court noted at the outset that the People had excused four Hispanic jurors, the defense had excused two Hispanic jurors, and two Hispanic jurors remained on the panel prior to the hearing on the Wheeler motion. The People opted to explain its challenges. After hearing the People’s explanation, the trial court stated that the prima facie showing was sufficient to raise an inference, and “[h]ad I made a ruling I would have required [the reasons for the challenge] because I think there was statistically an inference raised based on the number, four out of eight.”
We find that the People articulated permissible race-neutral justifications for the peremptory strikes. The People excused Juror No. 3 because he and his friends had been involved in violent gang activity, sometimes using knives and guns. The People excused Juror No. 14, whose cousin was in prison for murder. Juror No. 14 also expressed a belligerent attitude toward attorneys. He said he was not sure he could believe what was said in court because “of the way the attorneys ask questions.” He believed that the attorneys tailored their questions to get only part of the evidence out. On a previous occasion, Juror No. 14 had responded “screw you” to an attorney who had asked for a “yes” or “no” answer. The People excused Juror No. 22, whose sister went to prison for burglary. Juror No. 22 said she had a degree in criminal justice, was applying to the sheriff’s department as an older applicant, and was a special education teacher. The People believed that Juror No. 22 seemed a little “odd.” The People excused Juror No. 6, a resource teacher for a school that deals with difficult students, explaining that teachers who deal with violent students may accept violent behavior that the average person would not. The People believed that special education teachers might be sympathetic to the defendant, who looked very youthful. In rebuttal, defense counsel merely stated that he did not believe that Juror No. 6’s occupation of special education teacher and application to the sheriff’s department was a proper basis to excuse the juror.
We agree with the trial court’s finding that the People articulated nonracial justifications and defense counsel did not carry his burden of showing purposeful racial discrimination. Nevertheless, citing Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El), appellant now contends that a comparative analysis of the voir dire of the prospective Hispanic jurors dismissed by the People with the voir dire of some non-Hispanic prospective jurors demonstrates that the People engaged in unlawful discrimination. Miller-El held that after the trial court has found a prima facie showing of group bias and the prosecutor has stated his or her reasons for the challenges in question an appellate court should compare those reasons with the prosecutor’s actions with respect to other jurors to determine whether the reasons given were pretextual. (People v. Gray (2005) 37 Cal.4th 168, 189 (Gray).) Initially reluctant to perform a comparative juror analysis in the first instance in Gray, our Supreme Court subsequently assumed in People v. Zambrano, supra, 41 Cal.4th at page 1109 that it must undertake a comparative juror analysis for the first time on appeal. In People v. Lenix (2008) 44 Cal.4th 602, 622, our Supreme Court recently decided that “comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” “Thus, evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.” (Ibid.) Our Supreme Court limited its holding to a claim of error in the third stage of the Wheeler analysis. (Id., at p. 622, fn. 15.)
The People urge that because the trial court did not rule on whether the defense made a prima facie showing, the comparative analysis of Miller-El is not applicable, citing Gray, supra, 37 Cal.4th at page 189, which stated: “Miller-El thusdid not consider whether an appellate court must conduct a comparative juror analysis in the first instance, when the objector has failed to make a prima facie showing of discrimination . . . .” But here, the trial court impliedly ruled that the defense had made a prima facie case, and in any event, a comparative juror analysis does not avail appellant.
Appellant complains that Juror No. 22 and Juror No. 14 were challenged for having criminal relatives, but that two other non-Hispanic jurors were retained, despite having relatives who had been convicted of drug offenses and possession of an unregistered firearm. Our examination of Juror No. 22 and Juror No. 14 shows that they were not discharged merely for being related to persons with criminal backgrounds. Juror No. 14 criticized lawyers and had a negative attitude toward them. Juror No. 22 had been a special education teacher and seemed odd to the People. Appellant’s comparison of the special education teachers to a college dean, PTA president, and registered nurse does not convince us that the People’s objections were racially biased. The People expressed a concern that the special education teachers had a higher tolerance for violent behavior than the average person and might feel sympathy for the youthful appearing appellant.
We conclude that the trial court did not err in denying appellant’s Wheeler motion.
IV. CALCRIM No. 220 is constitutional
Appellant contends that CALCRIM No. 220 precludes the jury from considering the lack of evidence in determining whether a reasonable doubt existed to prove that appellant committed the crime and reduced the People’s burden of proof by effectively advising the jury to weigh the evidence in a matter suggestive of the preponderance of evidence standard. We disagree.
In determining whether jury instructions are correct, we look at the instructions as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237 (Campos)). An instruction is misleading only if in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.)
CALCRIM No. 220 provides that the People must prove the defendant guilty beyond a reasonable doubt. CALCRIM No. 222 defines evidence as sworn testimony, admitted exhibits, and anything that the jury was instructed to consider. Appellant urges that CALCRIM No. 220’s instruction to the jury to “impartially compare and consider all the evidence that was received throughout the entire trial,” when read in conjunction with CALCRIM No. 222, limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack of evidence of guilt, thereby violating appellant’s due process right to be convicted only upon proof beyond a reasonable doubt.
CALCRIM No. 220 provides in pertinent part: “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.”
We have previously disposed of the same argument in Campos. As here, the defendant in Campos did not object to CALCRIM No. 220 at trial and forfeited his claim. (Campos, supra, 156 Cal.App.4th at p. 1236.) Nevertheless, we held that CALCRIM No. 220 does not inform the jury that reasonable doubt must arise from the evidence. Rather, the jury was likely to understand that the determination of the defendant’s guilt beyond a reasonable doubt must be based on a review of the evidence presented. (Campos, supra, at p. 1238.)
Nor are we convinced by appellant’s argument that CALCRIM No. 220 directed the jurors to weigh the evidence under a preponderance of the evidence standard by the phrase “in deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence.” Appellant contends that the requirement of a comparison implies that the jury must weigh evidence that the People and the defendant must produce, evoking the civil standard of preponderance of the evidence. We disagree. The same argument was rejected in People v. Stone (2008) 160 Cal.App.4th 323, 332, where the court held that the admonition to the jury to compare and consider all the evidence, did not instruct it to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side. The court stated “Indeed, such an interpretation is completely inconsistent with the instructions as a whole.” (Ibid.) Similarly, as previously discussed, the jury here was clearly instructed many times that the People’s burden of proof was “beyond a reasonable doubt.”
We conclude that the instructions, taken as a whole, were not likely to mislead the jury.
V. CALCRIM No. 226 is constitutional
Appellant urges that CALCRIM No. 226 invites the jury to consider matters outside the record in violation of his rights to due process, a fair trial, and confrontation of witnesses. We disagree.
CALCRIM No. 226 instructs the jurors to use common sense and experience in deciding whether testimony is true and accurate. Appellant contends this instruction encouraged the jurors to rely on extrajudicial evidence or employ a standard less than proof beyond a reasonable doubt because “common sense” can be used as a substitute for objective evidence of guilt. Again, Campos dispensed with appellant’s argument, where we held that “CALCRIM No. 226 does not tell jurors to consider evidence outside the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience.” (Campos, supra, 156 Cal.App.4th at p. 1240.) Campos also distinguished People v. Bickerstaff (1920) 46 Cal.App. 764 and People v. Paulsell (1896) 115 Cal. 6, relied upon by appellant, on the basis that the instructions at issue in those cases instructed jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard. (Campos, supra, at p. 1240.)
CALCRIM No. 226 provides: “You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.”
Moreover, as in Campos, other instructions made clear to the jury that using common sense and experience was not a license to consider matters outside the evidence. (Campos, supra, 156 Cal.App.4th at p. 1240.) The jurors were instructed that the jury could only consider evidence presented in the court room (CALCRIM No. 220); the jury must decide whether a fact in issue has been proved based on all the evidence (CALCRIM No. 223); the jury must carefully review all the evidence (CALCRIM No. 301); and the jury must not do research or investigate the crime (CALCRIM No. 201). The trial court questioned prospective jurors to ensure they would apply the presumption of innocence and not consider appellant’s custody in deciding his guilt. Pursuant to appellant’s request, the trial court instructed the jury at the conclusion of trial that it must not be biased against him merely because he was in custody.
While appellant now complains that the inquiry could have been made by the court without an explicit disclosure that appellant was in custody, the record shows that the trial court explained to defense counsel that it would let the jury know appellant was in custody; ask the jury whether it would be able to follow the court’s instructions not to consider appellant’s custody status; and tell the jury why appellant was in custody. Subsequently, defense counsel replied in the affirmative when asked by the trial court if he wanted a custody voir dire. Accordingly, we conclude that appellant invited any error.
And, we presume that the jury followed the trial court’s instructions to disregard appellant’s custody status in deciding his guilt and the advisement that appellant was in custody only because he could not post bail and not because he was guilty. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.)
We conclude the trial court did not err in disclosing appellant’s custody status to the jury.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.
CALCRIM No. 401 provides: “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 or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.”