Opinion
C085437
06-21-2019
THE PEOPLE, Plaintiff and Respondent, v. NALANA NICOLE OMEGA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P15CRF0067)
Defendant Nalana Omega, along with Raul Gonzalez, Roberto Barrera, Danielle Weed, and Daisy Garcia, paid a visit to Pete Thomas one night. They departed with several items of his property and left him with a stab wound to the chest from which he died. Garcia later went to the police and related part of what happened that night, although she did not witness the killing. A jury found defendant Omega guilty of first degree murder (Pen. Code, § 187, subd. (a)) and the trial court sentenced her to 25 years to life in prison.
Further undesignated statutory references are to the Penal Code.
Gonzalez, Barrera, and Weed were convicted of murder after separate trials. Their convictions are on appeal. (People v. Gonzalez and Barrera, C085232 and People v. Weed (May 2, 2019, C085254) [nonpub. opn.].)
On appeal, defendant contends that because the jury verdict did not specify the degree of murder, and there was evidence of second degree murder based on the theory of the natural and probable consequences of a conspiracy, the judgment must be reduced to second degree murder or remanded for a new trial. In her first supplemental brief, defendant contends the judgment must be reduced to second degree murder due to the failure to comply with section 1157 which requires a finding of the degree of the crime. In her second supplemental brief, defendant contends the matter must be remanded for a new trial because Senate Bill No. 1437, which has retroactive effect under In re Estrada (1965) 63 Cal.2d 740, abrogated the doctrine of natural and probable consequences liability for murder. Because we find the trial court instructed the jury on felony murder as the sole theory of murder, and felony murder is first degree murder, we find no prejudicial error and no need for remand and affirm.
FACTS
Pete Thomas and his brother Byron, both retired, lived on 26 acres outside of Placerville. Byron and his son lived in a house on the property, while Pete lived in a trailer. The brothers had been close, but after his retirement Pete became very involved with drugs, harming the brothers' relationship.
To avoid confusion, we refer to the Thomas brothers by their first names.
Pete was kind hearted and helped others. He was generous and Byron believed others took advantage of him. Conflict between the brothers arose over Pete's "drug friends" who came over at all hours; some tried to move in with Pete, straining the property's limited water supply. One of those friends was codefendant Weed, who had written Pete letters while she was in jail. The last time Byron saw his brother, Pete was driving off with Weed, who had just been released from jail.
Pete owned several guns, including an unregistered Glock handgun he claimed he had found in Arkansas. He also had a coin collection, jewelry, a laptop computer, and a cell phone.
On February 3, 2015, one of Pete's friends came to Byron's house and told him something had happened to Pete. The friend had already called 911. Byron went to the trailer and saw Pete on the couch with his eyes open. He knew at once that Pete was dead and had been for several days. Pete had blood on his face and shirt, and his hand was clutching a wadded up shirt to his chest. There was blood in the sink, suggesting Pete had suffered from internal bleeding and had been coughing or spitting up blood. Pete had a stab wound to his chest, from which he had bled to death.
Law enforcement searched the trailer and discovered that Pete's computer, cell phone, and the keys to his car were missing. They collected two drinking glasses and a Styrofoam cup for DNA analysis.
Alonso Aguilar, a detective with the sheriff's office, knew Daisy Garcia through a family connection. Garcia had reached out to him in the past when she had trouble with the law. On February 8, 2015, she reached out to Aguilar via Facebook. She wanted to talk to him about a homicide. Aguilar was on vacation in Mexico and told her he was unavailable. He called her when he returned and Garcia told him she had information about a murder near Placerville. Aguilar spoke to a supervisor who asked him to arrange a meeting among Aguilar, Garcia, and Detective Netashia Perez.
Garcia had been using drugs since she was 15 years old and was in court-ordered drug treatment at the time of trial. At the time of the murder, she had been living in a drug flop house. Garcia had grown up with Gonzalez and Barrera and considered them close friends. Gonzalez was dating defendant and they had moved into the flop house and started staying in Garcia's room.
A few days before the killing, Garcia went with Gonzalez and defendant as they stole a car. Later, Gonzalez and defendant came by and emptied bags of jewelry and coins on the floor of Garcia's room. Garcia was scared of defendant and left for Lake Tahoe for a few days where she partied and used drugs.
On January 31, 2015, Garcia had returned to the flop house and was in her room with Gonzalez, defendant, Barrera, and a man she believed was Gonzalez's uncle; they all were using methamphetamine. Defendant was taking pictures of herself with a gun. The group left and dropped off Gonzalez's uncle. Defendant talked about picking up a girl who was the only one who knew where some house was. Defendant had previously talked about a child molester, she called him a "chomo," who had things she wanted to steal. They went and picked up Weed outside a liquor store.
On the way to Pete's trailer, Weed said she would point out things to steal with her eyes. When she said she was going to kill the man, Gonzalez objected and said no one was getting killed.
At Pete's, Barrera stayed in the car and Gonzalez handed him the shotgun and told him to stand guard. The others went inside and used drugs with Pete. Gonzalez wanted to buy an ounce of methamphetamine and Pete called someone to arrange a sale. Weed walked around the trailer looking for jewelry and putting it in her pockets.
The conversation turned to the Glock. Pete did not want to take it out or sell it, but when Garcia returned from the restroom he had it out. Gonzalez asked Garcia to get Barrera. She went to the car and told Barrera that Gonzalez wanted him. Barrera went inside with the gun while Garcia stayed in the car.
Weed made trips to the car from inside, bringing out Pete's laptop computer, a jewelry box, a box of quarters, and a gun or two. Later, Weed, Gonzalez, defendant, and Barrera ran to the car. Weed had a glove on and was holding a knife. Defendant took the knife and wrapped it in a sweater. Gonzalez said, "What did that crazy bitch do?" They left Pete's house and stopped at another house where defendant took the sweater inside.
Gonzalez told Garcia that Weed had stabbed the man. A few days later, Weed admitted to Garcia that she had stabbed Pete.
The People offered a variety of evidence to corroborate Garcia's testimony. Jeremy Gannon was a former drug dealer who had sold drugs to Pete. On January 31, 2015, Pete called him and asked the price for half an ounce of methamphetamine; it was not just for himself. The call was unusual because Pete usually used text messages and did not purchase that quantity of drugs. Gannon agreed to meet him at Bucks Bar for the purchase; he waited hours but Pete never showed up. Gannon later called and texted Pete, but there was no answer. Cell phone records confirmed these calls.
Charles Hernandez testified about the flop house he owned. Garcia had lived there for four months before the killing, later Gonzalez and defendant showed up. Garcia and defendant did not get along.
Efren Zamora, Gonzalez's godfather, testified he was with the group that night and they all used methamphetamine. He claimed he did not see any guns. He had "a feeling" that something was going to happen that night and had them drop him off.
The police conducted a number of searches and found a variety of property consistent with burglaries. A search of a Honda registered to Gonzalez revealed ammunition, silver pocket knives, jewelry, challenge coins, and a check made out to a Paul Sweeney. A search of Barrera's residence revealed a shotgun. During a traffic stop of Gonzalez, defendant, and two others, the police found a handgun and ammunition in defendant's purse. A backpack in the car contained a revolver, ammunition, and jewelry. There was a shotgun in the attic of the flop house. A trunk there contained several bags of jewelry. Garcia helped Detective Perez find the car used the night of the killing, a silver two-door Hyundai registered to Efren Zamora's wife.
DNA analysis revealed a profile matching Pete's on one of the glasses taken from the trailer. A second glass had four contributors and no further analysis could be made. Weed's DNA profile was consistent with a major contributor to the DNA on the styrofoam cup and defendant could not be excluded as a minor contributor.
A recording device captured a conversation among Weed, defendant, Gonzalez, and Barrera as they were being transported in a van to the courthouse. In it, defendant said, "Hey, we went there for a sack period. Just stick with that." When Barrera claimed he was not there, Gonzalez said he was and Omega said they all were; she said law enforcement had their fingerprints.
Detective Perez interrogated defendant. Defendant admitted to being with Garcia, Gonzalez, Barrera, and Weed on January 31, 2015. Defendant believed stealing from a child molester was justified. For several weeks before the murder, Weed told her about an old man, a "chomo," and that she could get a gun. Defendant said Garcia was in the car during the killing and that Weed had wielded the knife; the knife defendant described was consistent with Pete's wound. Defendant had told Weed to wrap up the knife and throw it away.
Defendant considered herself the boss and as calling the shots. She claimed they went to Pete's to evaluate his residence for future robberies. She was interested only in the Glock. When arrested, defendant had Pete's Glock; she had taken it from Weed.
Gina Rutherford met defendant in jail. Defendant was angry that Weed had not been charged. She said they went to a child molester's home and he got stabbed; she thought Weed should be a part of it. Weed had done it. Defendant claimed they went to Pete's for guns and drugs. She said "chomos" deserve what they get; she sought them out to rob.
Defendant's conversations with Rutherford were overheard by another inmate who testified defendant told various stories. First, defendant said she did not know why they were arrested; they did not do it. They all went to buy drugs from someone and one of the girls stabbed him; he was a child molester. The next story was that they went there to rob the child molester. Defendant repeatedly made the point the victim was a "chomo." She was upset that she got arrested because the victim was a child molester.
Defendant testified in her defense. She was 34 years old and had used drugs since she was 15. She committed burglaries to support her drug habit. Each job had to net at least $5,000. She found it less offensive to burglarize child molesters. She claimed the group went to Pete's solely to use and buy drugs. There was no plan or discussion about robbery or burglary.
DISCUSSION
Defendant contends the judgment must be reversed and the matter remanded for a new trial because the verdict failed to specify the degree of murder and there was no evidence as to the theory of murder the jury selected in its verdict. Originally, in her opening brief, defendant contended there was substantial evidence to support a theory of second degree murder under the natural and probable consequences theory. She asserted the jury was instructed on the natural and probable consequences doctrine in connection with conspiracy and under People v. Chiu (2014) 59 Cal.4th 155, that doctrine will not support a first degree murder conviction. She argued the judgment should be reversed with the People having the option to accept a reduction to second degree murder or to retry the first degree murder offense.
In her first supplemental brief, she provided an additional theory to support her argument, contending the verdict failed to comply with section 1157, which requires that the jury find the degree of the crime. Under that section, the failure of the jury to so find results in the classification of the crime as the lesser degree. Defendant requests the same remedy, either a reduction to second degree murder or a retrial.
After briefing was complete, defendant requested and this court granted leave to file a supplemental brief addressing Senate Bill No. 1437. Defendant contends Senate Bill No. 1437 "effectively abrogate[s] the doctrine of natural-and-probable consequences liability as a basis for a murder conviction." She further contends that under the rule of In re Estrada, supra, 63 Cal.2d 740, the ameliorative changes of Senate Bill No. 1437 are retroactive to all cases that are not final when the new law took effect January 1, 2019. She contends that since second degree murder is no longer a viable option, the judgment must be reversed and the matter remanded for a new trial.
All of defendant's arguments are premised on the assertion that the jury was presented with alternate theories of murder and could have returned a verdict of either first or second degree murder. Because we find the jury the jury was presented with only a single theory of murder, first degree felony murder, defendant's contentions fail.
We note that the People argue felony murder was the only theory of murder on which the prosecution proceeded. They focus on the prosecution's argument to the jury. "Ladies and gentlemen there's just a single charge in this case, it's murder. The unlawful killing of Pete Thomas. It's charged in the most simplistic way murder can be charged, a felony murder charge. There is no first degree, there's no second degree, no manslaughter, you don't have to decide any of those things." The prosecutor then went through the elements of felony murder.
But this observation, although accurate, is not dispositive. The People's argument alone cannot serve as an election of the single theory binding on the jury. "[T]he prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.) The instructions control over the argument of counsel. (See CALCRIM No. 200 ["You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions"].) We therefore turn to the instructions to determine what theories of murder were available to the jury.
The trial court instructed the jury on "Liability for Coconspirators' Acts." (CALCRIM No. 417.). Part of the instruction read as follows: "A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
"A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan.
"To prove that the defendant is guilty of the crime charged, the People must prove that:
"1. The defendant conspired to commit one of the following crimes: Robbery or Burglary;
"2. A member of the conspiracy committed Robbery or Burglary to further the conspiracy;
"AND
"3. Murder was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit." (CALCRIM No. 417)
Based on this instruction, defendant contends, the jury could have reached its verdict based on the natural and probable cause doctrine, by finding that murder was the natural and probable consequence of either robbery or burglary.
We disagree that the jury was sufficiently instructed on any theory of murder other than felony murder such that it could have found any other theory applied, including the natural and probable consequences theory. First, CALCIM No. 520, which defines murder generally, was not given. Although the jury was told that "Homicide is the killing of one human being by another. Murder is a type of homicide. The defendant is charged with murder" (CALCRIM No. 500), the only instruction defining murder was CALCRIM No. 540B, explaining that defendant was charged under the theory of felony murder and defining murder in the context of felony murder. The instruction read as given in part:
"The defendant is charged with murder, under a theory of felony murder.
"The defendant may also be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator.
This "also" is bracketed, meaning it is optional, in the pattern instruction. The trial court should have not have added it, as it suggests there is another theory of murder available and here there was not.
"To prove that the defendant is guilty of first degree murder under this theory, the People must prove that:
"1 The defendant committed or attempted to commit, or aided and abetted or was a member of a conspiracy to commit Robbery or Burglary;
"2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more of the members of the conspiracy commit Robbery or Burglary;
" 3. If the defendant did not personally commit or attempt to commit Robbery or Burglary, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, committed or attempted to commit Robbery or Burglary;
"AND
"4. While committing or attempting to commit Robbery or Burglary, the defendant or perpetrator caused the death of another person."
Thus, the only definition the jury heard of the murder it was being tasked with determining was the definition of felony murder. And the jury was specifically told that felony murder was the theory under which defendant was charged. This is optional (bracketed) language in this instruction, but it was (properly) given in this case.
Second, CALCRIM No. 417 was incorrectly formulated from the pattern's instructions. The pattern instructs that element 2 should contain the non-target offense; in this case, the jury would need to find that a member of the conspiracy committed murder, as murder was the non-target offense here. Instead, the instruction as given tasks the jury with finding that "Robbery or Burglary" was committed by a member of the conspiracy--these are the target crimes. Construed as modified by the trial court and given to the jury, CALCRIM No. 417 does not even require that a murder be committed. An instruction that does not require a murder occur does not contain any theory of murder, much less a complete and viable theory such that a rational jury could competently find it applied. CALCRIM No. 417 was improvidently and incorrectly given and did not provide an additional theory of murder for the jury to consider.
Further, the court instructed the jury to consider all the instructions together and that some of the instructions may not apply. (CALCRIM No. 200.) We presume the jury understood and followed its instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) Clearly, viewing the instructions as a whole, the jury could not rely on the natural and probable consequences doctrine--or any other theory--to find defendant guilty of murder without finding the elements of felony murder. The only theory of murder on which the jury was fully instructed was felony murder, and the felony murder instruction is the only relevant instruction that required the jury to find an actual murder occurred. Nothing in the record suggests the jury did not follow its instructions. There was no Chiu error as the murder verdict could not have been based solely on the natural and probable consequences doctrine. For that same reason, we need not consider the effect of Senate Bill No. 1437 on the natural and probable consequences doctrine.
Senate Bill No. 1437 also made changes to the felony murder doctrine. Defendant raises no issue on appeal as to this aspect of Senate Bill No. 1437. --------
Murder committed in perpetration of robbery or burglary is first degree murder. (§ 189, subd. (a).) Because the jury was presented with only first degree murder as its sole option of conviction, its failure to specify the degree was not error. "[W]here, as here, the trial court correctly instructs the jury only on first degree felony murder and to find the defendant either not guilty or guilty of first degree murder, section 1157 does not apply. Under these circumstances, as a matter of law, the only crime of which a defendant may be convicted is first degree murder, and the question of degree is not before the jury. As to the degree of the crime, there is simply no determination for the jury to make. Thus, a defendant convicted under these circumstances has not, under the plain and commonsense meaning of section 1157, been 'convicted of a crime . . . which is distinguished into degrees.' " (People v. Mendoza (2000) 23 Cal.4th 896, 910, fn. omitted.)
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Robie, J.