Opinion
F060719 Super. Ct. No. VCF212923B
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE PETERS, Defendant and Appellant.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Richard Lee Peters appeals from the judgment entered upon his jury conviction of first degree murder for which he was sentenced to prison for 25 years to life. Appellant contends the trial court prejudicially erred when it: (1) admitted under various hearsay exceptions statements by his brother describing appellant's conduct in the underlying incident; (2) failed to respond adequately to the jury's request for a better definition of second degree murder; (3) gave erroneous instructions on aiding and abetting; and (4) gave an erroneous instruction on conspiracy felony murder. Appellant also contends insufficient evidence supports his murder conviction under the prosecution's theory that the killing was willful, deliberate, and premeditated because there was insufficient evidence of intent to kill. Finally, appellant contends, and respondent concedes, the abstract of judgment must be amended to reflect that the obligation to pay victim restitution is joint and several. We agree with appellant's last contention and remand the matter to the trial court to correct the abstract of judgment. In all other respects, the judgment is affirmed.
FACTS
Introduction
Sometime during the afternoon of October 31, 2008, appellant, accompanied by his brother Charlie Peters, and their uncle, Johnnie Bennett (collectively, the defendants), drove the victim, Richard Hopper, from the city of Porterville to a rural area near Avenue 112 in Tulare County. There, one or more of the defendants brutally beat Hopper by repeatedly kicking and stomping on his face and head, causing, among other things, multiple facial fractures and extensive bleeding in the brain. Afterwards, the defendants left Hopper lying, fatally injured, on the side of the road near an orange grove. A local resident discovered Hopper's body later that evening around 7:00 p.m. Hopper's shirt was pulled up over his head and the shirt was covered with blood. A pathologist performed an autopsy on Hopper and determined the cause of death was blunt force trauma to the face and head. Hopper's airway was also blocked with blood and vomit. The pathologist opined Hopper would have died within five to ten minutes of receiving his injuries. Other than the defendants, there were no witnesses to the beating. The extent of appellant's role in the attack and surrounding events was thus a central issue at his trial.
All date references are to 2008 unless otherwise specified.
The trial court granted the prosecution's motion to try the defendants separately.
The Prosecution
Around 2:00 p.m. on October 31, appellant borrowed a vehicle (a Dodge Durango) from his then girlfriend, Desiree Santos. He returned the car to Santos that night around 8:00 p.m. About a week earlier, appellant had called Santos at work, seeming upset. He told her that guns had been stolen from his house and they had belonged to his grandfather.
During the afternoon of October 31, Kenny Smart, who was living at his grandmother's house in Porterville, received a phone call about driving somewhere with the defendants. The defendants came to pick him up in a Dodge Durango. Jerry Manuel, who also lived at Smart's house, went with them. Appellant drove the group to the home of Hopper's brother, Jerry Hopper (Jerry).
To avoid confusion, we refer to Charlie Peters and Jerry Hopper by their first names and intend no disrespect thereby.
During the drive to Jerry's house, Smart heard the defendants talking about confronting a person who had something to do with guns that had been stolen from appellant's house and how they were going to fight the person if he had the guns. They also talked about money the person owed. Smart was aware that guns had been stolen from appellant's house because appellant had previously told him about it. Appellant expressed to Smart that he was angry and wanted to get the guns back because they had belonged to his grandfather and meant a lot to him.
At trial, Manuel, who testified that he was related to the defendants, denied that they talked about guns on the way to Jerry's house and claimed they only talked about picking up a check. However, when Detective Joseph Cox interviewed Manuel on November 7, Manuel reported that the conversation in the Durango was about both guns and money. Manuel heard them say, "we're gonna see if he's got the guns-and if he's got the guns, well, we're gonna give him what he's got coming to him" and "if he doesn't tell them about the guns then he's gonna get what he has coming."
Jerry testified that Bennett was a family friend whom he had known for approximately 28 years. When the defendants came to his house, Hopper was supposed to meet Bennett there because Hopper owed Bennett $50 and Hopper's social security check was sent to Jerry's house.
While they were waiting for Hopper to arrive, Hopper called Jerry and said he could not make it for another 20 minutes. When Jerry replied that he needed to get his children ready for Halloween, Hopper directed Jerry to give his social security check to Bennett and to tell Bennett to bring the check to him and that Bennett would know where to find him.
Jerry further testified that Bennett had called him earlier that day and told him that his brother's friends had "ripped off my guns from my house on the reservation." Bennett said he was going to have Hopper help him get the guns back but asked Jerry not to say anything to Hopper about it. Bennett said something like, "Don't say nothing 'cause I want to make sure that I get those guns back because they were my dad's."
After getting Hopper's social security check from Jerry, the defendants dropped Smart and Manuel back off at their house. According to Smart, the defendants returned to his house again about 50 minutes later. Appellant and Charlie seemed "kind of excited." They said that "they had got in a fight and they beat the guy up" and that "they were throwing knees and starting to kick him." Charlie said he told appellant to stop, but appellant would not stop. Appellant said that if no one found Hopper in a couple of hours, he was going to die.
When appellant and Charlie were describing the beating, they were all standing together in a circle formation, about two feet apart from one another. Bennett and Manuel were also part of the circle. Bennett remained quiet while his nephews were talking. Smart agreed that appellant seemed to be "bragging about how bad he beat this guy up."
According to Manuel's police statement, the defendants did not return to his and Smart's house until around 10:00 or 10:30 p.m. Manuel stated that appellant and Charlie "told me they picked [Hopper] up, they talked to him, and then I guess they beat him up real bad and ... they left him." Charlie also said "he was telling [appellant] to stop but he didn't." Charlie said Hopper was on the ground with his shirt up over his face and was making a gurgling sound when he told appellant to stop, but "[appellant] just kept going and doing stuff." Manuel reported that all three defendants were present when these details were being told to him.
Detectives interviewed appellant on November 7. During the interview, appellant eventually admitted that he drove Hopper out into the country at Bennett's direction. Bennett told appellant to stop and then Bennett and Hopper both got out of the car. According to appellant, Bennett started hitting and "going crazy" on Hopper and that Hopper did not fight back.
After Bennett started fighting with Hopper, Bennett said something about appellant's guns. At this point, appellant stepped in and questioned Hopper about the guns. Hopper told appellant that he was trying to sell them. Appellant started arguing with Hopper about getting the guns back. Appellant admitted he hit Hopper "a couple of times" but claimed "my uncle did the most of it."
Appellant denied kicking or stomping on Hopper. Appellant claimed that after he hit Hopper a couple of times, Bennett wrestled Hopper to the ground and started kicking and stomping on him. Appellant told detectives that when his uncle was attacking Hopper, "I was just like, I was just stunned, I was just shocked and, I was just standing there and my brother's pretty much the same way." Appellant did not know how Hopper's shirt got over his head. Neither he nor Charlie pulled it up.
Appellant said that when they left, Hopper was making "snoring" sounds, but he did not know Hopper was dying. After leaving Hopper, they stopped at Manuel and Smart's house. Appellant told them his uncle just beat up some guy. Then he added, "I think I did use 'we', I go, oh man, oh man, we beat this guy up . . . ." Appellant told detectives he was scared and in shock because he had never seen his uncle act that way.
The defense
Appellant testified that after his grandfather died, he received a number of rifles that had belonged to his grandfather. The guns were stolen from his house about a month and a half before the October 31st incident. Appellant decided not to report the theft because he did not think the police on the reservation would be effective in finding them.
Appellant downplayed the effect the theft of the guns had on him. Appellant testified that, although it bothered him "[a] little bit" to lose the guns, he had been "wanting some new guns anyway." Appellant explained his grandfather's guns were old and starting to break down. Appellant often used them for target practice. He would also let Bennett borrow the guns for hunting. Bennett would sometimes take the guns from appellant's house when he was not there. Bennett would usually leave a note or some sign that he had been there. When the guns were stolen, appellant came home to find his door unlocked and a number of items scattered around his living room. His X-Box and approximately 20 video games were also missing.
A couple of weeks prior to October 31, Bennett called appellant and said he might know who had his guns. Appellant was skeptical, explaining it was difficult to believe his uncle because he was "hallucinative" and "talks . . . off the wall sometimes."
On October 31, appellant received another call from Bennett. Bennett wanted a ride to pick up some money. Appellant picked Bennett up and they went to Jerry's house. They stayed for five or ten minutes and they dropped Smart and Manuel back off at their house. Appellant denied that he heard any of the conversation between Jerry and Bennett. Appellant explained that he was playing with his phone and not paying attention to them. Appellant thought that after his uncle picked up the money, they would leave and that would be it.
After they dropped off Smart and Manuel, they picked up Hopper at a house behind the hospital. Hopper got into the car and started talking with Bennett. Appellant was still driving, Bennett was sitting in the front passenger seat, Hopper was sitting behind appellant, and Charlie was sitting next to Hopper.
Bennett told appellant to get on the highway. Appellant thought his uncle was going to direct him to a place to cash the check they had picked up at Jerry's house. Appellant usually cashed his checks at Joe's West Side, which was in the direction they were heading.
While appellant was driving, he heard Bennett and Hopper arguing. At first, they only seemed to be arguing about money. Bennett then said something like, "Do you have them" or "Do you know where they're at." Appellant realized Bennett might be referring to his guns when he heard Bennett say, "You know where my guns are so take me to get them."
Appellant continued to follow Bennett's directions telling him where to drive. When they started driving into the countryside, appellant assumed they were going to go to a house out there. However, after they turned down a dirt road, Bennett told appellant to stop. Appellant and Bennett both got out of the car. Bennett started yelling at Hopper about money and guns. Bennett seemed angry and his voice was raised. Bennett and Hopper then started pushing each other and looked like they were getting ready to fight. Appellant tried to step in, but Bennett pushed him out of the way.
After trying to stop the fight, appellant addressed Hopper himself and said, "If you got my guns, just give them to me and everything will be fine." Hopper started making excuses about not being able to give appellant the guns. This angered appellant, who continued asking Hopper about the guns. Eventually, Hopper said that he was selling them or had sold them. This angered appellant further. Appellant swung his fist and struck Hopper once or twice.
After appellant struck Hopper, Bennett pushed appellant out of the way and started pushing Hopper again. Bennett and Hopper both fell to the ground and appellant again tried to break it up. Charlie came over and helped Bennett stand up. Appellant started questioning Hopper again about the guns, to which Hopper replied, "Look, they're gone." At this point, Bennett knocked Hopper to the ground and started to kick and stomp on him. Appellant denied kicking or having further physical contact with Hopper after Bennett knocked Hopper to the ground.
Appellant testified that he was in shock and had never seen his uncle get like that before. According to appellant, Bennett was lifting his foot and stepping down on Hopper, "just like you're stomping on cockroaches." Appellant said, "Well, I'm out of here. I'm getting out of here" and "I don't want nothing to do with this." Appellant went to the car and started to leave with Charlie. Bennett then ran to the car and left with them.
Although appellant thought Hopper was seriously hurt, he did not think he was dying. Appellant denied making any statements to the effect that Hopper was so badly hurt that he would need medical attention or die.
After they left Hopper, they were shaken up. They stopped by Smart's house to "get a soda." Appellant told Manuel and Smart that his uncle got into a "little fight" with the guy whose check they picked up and that his uncle had "stomped on him a little bit." Bennett was standing nearby when appellant said this. Appellant was not sure where Charlie was. Shocked by what he saw his uncle do, appellant was a little scared and forcing himself to act naturally while he was talking to Smart and Manuel. Appellant did not remember Charlie saying anything about what happened. Appellant explained, "I don't remember him talking at all, but I . turned around to get on my phone for like two, three second, maybe, and he could have said something."
The following Tuesday, appellant and Charlie were heading out on a trip to the coast, when Bennett called and said the guy he beat up did not make it and was found dead. Appellant asked Bennett what he was calling him for and hung up on him.
DISCUSSION
I. Admission of Charlie's Statements
The prosecution filed a trial brief and in limine motions, which sought, among other things, to admit statements made by appellant and his brother Charlie to Smart and Manuel, describing the beating of Hopper, as adoptive admissions, declarations against penal interest, and excited utterances. At the hearing on the motion, the trial court remarked that the evidence appeared to be admissible under all three hearsay exceptions and granted the prosecution's motion to admit the statements.
Appellant now contends the trial court erred in admitting Charlie's statements to the effect that he told appellant to stop beating Hopper, but appellant would not stop and continued to beat Hopper even after they heard him gurgling. We disagree and conclude the court properly admitted the statements under the adoptive admission exception. In light of this conclusion, we need not reach appellant's claims the evidence was inadmissible under the other hearsay exceptions relied on by the prosecution.
It also appears defense counsel focused on these comments in opposing the prosecution's motion at the hearing below.
In determining whether hearsay testimony is admissible as an adoptive admission, the following principles apply: "Hearsay is 'evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' (Evid. Code, § 1200, subd. (a).) Hearsay is not admissible unless it qualifies under some exception to the hearsay rule. Two hearsay exceptions are relevant here. A defendant's own hearsay statements are admissible. [Citations.] A statement by someone other than the defendant is admissible as an adoptive admission if the defendant 'with knowledge of the content thereof, has by words or other conduct manifested his adoption [of] or his belief in its truth.' (Evid. Code, § 1221; see People v. Preston (1973) 9 Cal.3d 308, 314 & fn. 3 [(Preston)].)" (People v. Davis (2005) 36 Cal.4th 510, 535 (Davis).)
As our high court in Preston explained, "[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt." (Preston, supra, 9 Cal.3d at pp. 313-314.)
"To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide." (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
Thus, in determining whether the trial court erred in allowing testimony regarding Charlie's statements to Smart and Manuel, this court must determine whether there was sufficient evidence to support a reasonable jury finding that: "(a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (b) by words or conduct, the defendant adopted the statement as true." (Davis, supra, 36 Cal.4th at p. 535; see also Evid. Code, §§ 403, 1221; Preston, supra, 9 Cal.3d at p. 314 & fn. 3.)
Here, there was sufficient evidence appellant heard Charlie's statements to Smart and Manuel. Manuel reported that appellant was present when the statements at issue were made and Smart testified that, when appellant and Charlie were talking about the beating of Hopper, they were all standing close together in a circular formation. Because of their proximity to one another, the jury could reasonably infer that appellant heard and understood Charlie's statements that appellant kept beating Hopper after Charlie told him to stop and they heard Hopper gurgling. The jury could also reasonably infer such statements called for a reply if they were untrue, and appellant's silence was a tacit admission he committed the acts Charlie described. (See People v. Zavala (2008) 168 Cal.App.4th 772, 778-780 [trial court properly instructed on adoptive admission when defendant's confederates boasted about committing murder and threatened anyone who talked and defendant neither said anything nor denied anything].)
Appellant's challenge on appeal implicates disputed factual questions, which were matters for the jury to decide. For example, relying on on his own testimony at trial, appellant contends Charlie's statements were inadmissible as adoptive admissions because he was not present when they were made but had gone to make a phone call. However, appellant's claimed absence was placed in dispute by the prosecution's evidence, discussed above, which, if believed, was sufficient to support a finding that appellant was present when the challenged statements were made. Appellant has not demonstrated that the trial court abused its discretion in admitting Charlie's statements under the adoptive admission exception to the hearsay rule.
The trial court correctly instructed the jury on the foundational requirements for adoptive admissions pursuant to CALCRIM No. 357: "If you conclude that someone made a statement outside of court that tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements have not been met, you must not consider either the statement or the defendant's response for any purpose."
II. Response to Jury Question
During deliberations, the jury sent the trial court a note stating: "We need a better def. of second degree. We have the def. of 1st, then it just says all others are second. What does that mean? What is between 1st & volintary [sic] manslaughter?" After consulting with the attorneys in chambers, the trial court provided the jury with the following written response:
"I refer you to Instruction 520 for the definition of Murder, (both first and second degree), and Instruction 570 for the definition of Voluntary Manslaughter. If you determine that the defendant is guilty of murder under that definition, then it would be necessary for you to determine if he is guilty of first or second degree murder. The prosecution has put forth two theories of first degree murder: 1. Willful, deliberate and with premeditation, and 2. Lying in wait. They are defined in Instruction 521. If you find that neither of these theories apply, then the defendant could not be found guilty of first degree murder, and he could only be convicted of second degree murder. On the other hand, if you find, under the definitions of murder and manslaughter that the defendant is not guilty of murder, then you can determine if he is guilty or not guilty of voluntary manslaughter."
Appellant now contends the trial court's response was inadequate and violated his federal due process rights. Appellant does not argue that the court's response was legally incorrect but asserts the court should have responded to the jury's question by giving various CALJIC instructions discussed below.
We initially agree with respondent that appellant forfeited his right to object to the trial court's response to the jury's inquiry as a result of his trial counsel's acquiescence with the court's proposed response. Our conclusion is supported by People v. Rodrigues (1994) 8 Cal.4th 1060 (Rodrigues). In Rodrigues, our Supreme Court reviewed a defendant's claim that the trial court's response to a jury inquiry deprived him of his due process rights, although the trial court's response had been suggested and consented to by the defendant's trial counsel. The court stated, "Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived." (Id. at p. 1193.)
Our Supreme Court has made clear in cases following Rodrigues, supra, 8 Cal.4th 1060, that Rodrigues's waiver holding applies to circumstances when counsel merely agrees with the court's response to a jury inquiry or fails to seek further clarification. (People v. Marks (2003) 31 Cal.4th 197, 237 [citing Rodrigues in rejecting a defendant's contention that a court's response to a jury inquiry regarding its instructions was incorrect and stating, "if defendant favored further clarification, he needed to request it. His failure to do so waives this claim"]; People v. Hughes (2002) 27 Cal.4th 287, 402 [rejecting a claim that the court gave an insufficient response to a jury inquiry about deadlock, stating "this claim is waived by defense counsel's agreement with the trial court that informing the jury of the consequences of a deadlock would have been improper," and citing Rodrigues]; see also People v. Bohana (2000) 84 Cal.App.4th 360, 373 [the court, citing Rodrigues, held with regard to a jury inquiry about its instructions, "[w]here, as here, appellant consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived"].)
Appellant does not address the forfeiture issue in his reply brief but maintains the trial court had a sua sponte duty to instruct the jury with CALJIC No. 8.73 or CALCRIM No. 522, which essentially inform the jury that where "the provocation was not sufficient to reduce the homicide to manslaughter," it may nonetheless be sufficient to negate premeditation or deliberation. (CALJIC No. 8.73.) However, as respondent correctly points out, our Supreme Court has held "CALJIC No. 8.73 is a pinpoint instruction that need not be given on the court's own motion." (People v. Rogers (2006) 39 Cal.4th 826, 880 (Rogers).)
Moreover, as the Rogers court observed, "the manslaughter instruction does not preclude the defense from arguing that provocation played a role in preventing the defendant from premeditating and deliberating; nor does it preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed." (Rogers, supra, 39 Cal.4th at p. 880.) Here, defense counsel did not argue to the jury-as he was free to do under the instructions given-that appellant had been unreasonably provoked by Hopper, precluding formation of deliberation and premeditation. Instead, the primary defense theory was that appellant acted in defense of his personal property; i.e. his grandfather's guns. Defense counsel urged the jury to find that, in admittedly striking Hopper twice, appellant used a reasonable amount of force to protect the guns, and that it was Bennett, not appellant, who delivered the fatal blows after pushing Hopper to the ground. The court also instructed the jury on the defense theory pursuant to CALCRIM No. 3476 ("Right to Defend Real or Personal Property"). The fact the court did not give a pinpoint instruction that appellant did not request, covering a theory defense counsel did not wish the jury to consider, was not error.
Thus, defense counsel argued: "My client admits to striking Richard Hopper twice, and he strikes Richard Hopper when he's asking the guy about the guns.... And the law says the owner of personal property may use reasonable force to protect that property from imminent harm. And what's the imminent harm right there? Richard Hopper says, 'Yeah, I've got the guns,' and then Richard Hopper says, 'I can't give them to you. I'm gonna get rid of them. Oh, I got rid of them. I can't give them to you.' [¶] So the imminent harm is, in [appellant's] mind, that he will lose his property again. He gets his hopes up that he's gonna have his property, and then this guy is telling him it's gonna be lost again. So he uses force on Richard Hopper to try and prevent that. 'Hey, give me my guns.' The law says that's okay. It says reasonable force means that amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm. [¶] ... [¶] [W]hat is he guilty of? Hitting the thief twice for not giving his guns back when he thinks he's gonna lose them a second time. The law says if you think that's reasonable, he's guilty of nothing. If you think that's unreasonable, he's guilty of battery. And that's all the evidence you have of what he actually did."
Appellant also maintains in his reply brief that the trial court neglected its sua sponte duty to charge the jury with CALJIC No. 8.71, which provides that the jury must give the defendant the benefit of any reasonable doubt as between first and second degree murder, and CALJIC No. 8.72, which provides that the jury must give the defendant the benefit of any reasonable doubt between murder and manslaughter.
CALJIC No. 8.71 provides: "If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree [as well as a verdict of not guilty of murder in the first degree]."
CALJIC No. 8.72 provides: "If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt and find it to be manslaughter rather than murder."
In People v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry), the Supreme Court held a criminal defendant is entitled to the benefit of the jury's reasonable doubt as to all crimes with lesser included offenses: "When the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Citations.]" (See also § 1097 [if reasonable doubt exists as to which of two or more degrees of the same offense the defendant has committed, "he [or she] can be convicted of the lowest of such degrees only"].) The trial court is required to give the Dewberry instruction sua sponte. (People v. Crone (1997) 54 Cal.App.4th 71, 76.) Because second degree murder and voluntary manslaughter are lesser included degrees or offenses of first degree murder (People v. Koontz (2002) 27 Cal.4th 1041, 1086 (manslaughter); People v. Cooper (1991) 53 Cal.3d 771, 827 (second degree murder)), appellant is correct that an instruction on the Dewberry principle was required.
Although the trial court did not give CALJIC Nos. 8.71 and 8.72, the court's instructions as a whole complied with the requirements of Dewberry. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 ["'"the correctness of jury instructions is to be determined from the entire charge to the jury and not from a consideration of parts of an instruction or from a particular instruction."'"].) Among the many instructions given were the following:
"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 unless I specifically tell you otherwise." (CALCRIM No. 220.)
"The defendant is charged with murder. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [The instruction then listed and defined the elements of the crime.]" (CALCRIM No. 520.)
"If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [The instruction then defined these terms.] [¶] ... [¶] The defendant is also guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. [The instruction then listed and defined the elements of murder by lying in wait.] [¶] ... [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder." (CALCRIM No. 521.)
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] ... [¶] The People have a burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." (CALCRIM No. 570.)
Finally, the court's response to the jury's question told the jurors that if they found appellant committed murder under the definition of murder provided but did not find the prosecution proved either of its theories of first degree murder (i.e., premeditated murder or murder by lying in wait), they could not find appellant guilty of first degree murder and could only find him guilty of second degree murder. The jury was further instructed that if it found that appellant was not guilty of murder, then it could determine whether appellant was guilty of voluntary manslaughter.
The instructions met the requirements of Dewberry, supra, 51 Cal.2d 548, and in general correctly restated the law. The jurors were instructed that if they had a reasonable doubt about whether appellant was guilty of first degree murder, they had to find him not guilty of that offense. If they then had a reasonable doubt about his guilt of second degree murder, they had to find him not guilty of any kind of murder. The jurors could then find him guilty of voluntary manslaughter, but only if they decided he committed a homicide less serious than murder but still unlawful; i.e., that he acted as a result of a sudden quarrel or in the heat of passion. These instructions satisfy the requirements of Dewberry because they "make[] clear that the principle of reasonable doubt applies not only between first and second degree murder but also between second degree murder and manslaughter" when manslaughter is a lesser included offense of murder. (Id. at p. 557.) We conclude that the instructions conformed to the Dewberry standard.
III. Aiding and Abetting Instructions
The trial court used CALCRIM Nos. 400 and 401 to instruct on aiding and abetting. Appellant now contends certain language in CALCRIM No. 400 was prejudicially misleading. He also contends the court erroneously omitted language from CALCRIM No. 401 concerning an aider and abettor's withdrawal from a crime. For reasons discussed below, we find no prejudicial instructional error.
A. CALCRIM No. 400
As read to the jury, CALCRIM No. 400 provided, in part:
"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.)
Relying on People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego), and People v. Nero (2010) 181 Cal.App.4th 504 (Nero), appellant contends the trial court prejudicially erred when it instructed on aiding and abetting under CALCRIM No. 400 because that instruction states an aider and abettor is "equally guilty" of the crime committed by the direct perpetrator even though an aider and abettor can also be guilty of a crime that is a lesser offense of the direct perpetrator's crime.
Initially, we address respondent's forfeiture argument. Relying on Samaniego, supra, 172 Cal.App.4th 1148, respondent argues appellant's challenge to CALCRIM No. 400 was forfeited by the absence of contemporaneous objection. We are not persuaded. Samaniego concluded that a challenge to CALCRIM No. 400 was not preserved for direct review because modification or clarification had not been sought below. (Id. at p. 1163.) We differ with Samaniego on the question of forfeiture. A defendant's claim that an instruction misstated the law or violated his due process right "is not of the type that must be preserved by objection." (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; see also § 1259.) We believe People v. Flood (1998) 18 Cal.4th 470, 482, footnote 7, and People v. Smithey, supra, 20 Cal.4th at page 976, footnote 7, necessitate the conclusion that the instructional challenge presented here is cognizable despite the absence of contemporaneous objection.
As the court in Samaniego explained, the now superseded version of CALCRIM No. 400 given in this case is generally an accurate statement of law regarding an aider and abettor's liability, but should be modified in those "exceptional cases" where the jury could be misled because various codefendants may have acted with different mental states in committing the charged crimes. (Samaniego, supra, 172 Cal.App.4th at pp. 1163-1165.) In Samaniego, where two victims were killed in a gang-related shooting and there was no evidence as to who fired the fatal shots, the court held it would potentially be misleading under those particular facts to give the jury CALCRIM No. 400 without modification or clarification of the words "equally guilty" to properly assess each defendant's individual mental state. (Id. at pp. 1164-1165.) In so holding, the court reviewed McCoy, supra, 25 Cal.4th 1111, which made clear that in cases involving accomplices charged with specific intent offenses, the jury must separately determine each codefendant's mental state and may convict an accomplice of a greater offense than the actual perpetrator under an aiding and abetting theory of liability. (Id. at pp. 1116-1117.) By parity of reasoning, the court in Samaniego determined an accomplice may be convicted of a lesser offense than the perpetrator as well, "if the aider and abettor has a less culpable mental state." (Samaniego, supra, 172 Cal.App.4th at p. 1164.)
Nero, supra, 181 Cal.App.4th 504 essentially followed the holding of Samaniego, supra, 172 Cal.App.4th 1148, but expanded its application to even cases involving "unexceptional circumstances" where the facts showed jury confusion regarding the instructions on aider and abettor liability and lesser and greater mental states. (Nero, supra, at pp. 518-520.) The court in Nero reached the conclusion that the jury was misinstructed and misled by the "equally guilty" language of the precursor to CALCRIM No. 400 (CALJIC No. 3.00) based on the facts of that case, which showed the jury had asked several times whether it could convict the defendant's sister as an aider and abettor of a lesser crime than the charged murder committed by the defendant and the court merely reread CALJIC Nos. 3.00 and 3.01. (Nero, supra, at p. 517.) The Nero court also suggested that the pattern instruction be modified to address the risk of confusion. (Id. at p. 518.)
Nero's suggestion concerning modification of the pattern instructions was adopted by the Judicial Council of California. In April 2010, CALCRIM No. 400 was reworded and the problematic word "equally" was eliminated. CALCRIM No. 400 now provides, in relevant part: "A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
The applicable test for assessing prejudice in this instance is the Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 24; Samaniego, supra, 172 Cal.App.4th at p. 1165; Nero, supra, 181 Cal.App.4th at pp. 518-519.) "Under that test, an appellate court may find the error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. [Citation.]" (Samaniego, supra, 172 Cal.App.4th at p. 1165.)
Appellant contends the instructional error was prejudicial because "it is reasonably probable the jury believed that Bennett struck the fatal blow but appellant (a) aided Bennett by driving him and Hopper and (b) abetted Bennett by punching Hopper and thereby encouraging Bennett to keep beating Hopper" and under "the version of CALCRIM 400 given, the jury would erroneously have concluded that appellant, an aider and abettor, was necessarily guilty of first degree murder even if appellant, unlike Bennett, did not intend a killing, premeditate a killing or deliberate about it."
Contrary to appellant's focus solely on the "equally guilty" language of CALCRIM No. 400, the jury was not given such instruction in a vacuum. The court also read CALCRIM No. 401. By its plain language, CALCRIM No. 401 advised the jurors that appellant could not be found guilty of aiding and abetting a crime unless the direct perpetrator committed that crime, appellant knew of the direct perpetrator's intent to commit the crime, appellant shared the same intent as the direct perpetrator, and before or during the commission of the crime, appellant did in fact aid and abet the perpetrator in committing the crime. Based on the elements in CALCRIM No. 401, if appellant was found not to be an actual perpetrator, but found to be only involved in the killing while having a less culpable mental state than the actual killer, he could not have been held liable as an aider and abettor (People v. Beeman (1984) 35 Cal.3d 547, 560) because "[t]here must be proof that the accused not only aided the actor but at the same time shared the criminal intent" (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287) for such liability.
As given, CALCRIM No. 401 provided, 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 [¶] The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets 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."
Our conclusion that appellant was not prejudiced is bolstered by the fact the jury was only instructed on a direct aiding and abetting theory and not on the natural and probable causes doctrine of aiding and abetting. (See McCoy, supra, 25 Cal.4th at p. 1118 ["outside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator"].) In closing argument, the prosecutor stressed the theory that appellant was guilty of first degree murder as a direct perpetrator. However, in briefly arguing that appellant could also be found guilty as an aider and abettor, the prosecutor specifically referred to the court's instructions requiring that the perpetrator and the aider and abettor share the same criminal intent. We also find no prejudicial error in the court's inclusion of the last bracketed paragraph of CALCRIM No. 400, which stated: "Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." (CALCRIM No. 400.)The bench notes to CALCRIM No. 400 advise that "[i]f the prosecution is also relying on the natural and probable consequences doctrine, the court should also instruct with the last bracketed paragraph" and "[i]f the prosecution's theory is that any of the crimes charged were committed as a natural and probable consequence of the target crime, CALCRIM No. 402 or 403 should also be given."
Thus, the prosecutor argued: "The perpetrator committed the crime, the defendant knew the perpetrator intended to commit the crime. This is another instruction that's pretty long. You guys can read it. The judge has given it to you."
Because the prosecution did not rely upon, and the trial court did not instruct upon, the natural and probable consequences doctrine with respect to liability as an aider and abettor, the second paragraph of CALCRIM No. 400, while legally incorrect, was inapplicable and should not have been given. However, we agree with respondent that the error does not require reversal. "Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally '"only a technical error which does not constitute ground for reversal."' [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) Such error does not implicate the federal constitution and is reviewed under the Watson standard. (People v. Prettyman (1996) 14 Cal.4th 248, 280.)
People v. Watson (1956) 46 Cal.2d 818, 836.
We disagree with appellant's assertion that the erroneous instruction "misled the jury to suppose appellant could be guilty of premeditated murder even if he never intended that Hopper be killed but Bennett did." For the reasons discussed above, the court's instructions on aiding and abetting, viewed in their entirety, make clear that the jury could not convict appellant as an aider and abettor to a premeditated murder by Bennett unless it found appellant shared Bennett's criminal intent. Therefore, it is not reasonably probable the irrelevant language contained in the second paragraph of CALCRIM No 400 affected the outcome in this case.
B. CALCRIM No. 401
Appellant contends the trial court erred by failing to instruct the jury, sua sponte, on the defense of aider and abettor withdrawal, which is set forth in the last bracketed paragraph of CALCRIM No 401. Appellant contends the trial court should have given this instruction because, based on his statements to police and his testimony at trial, "there was substantial evidence that appellant withdrew from participation before Bennett kicked and stomped Hopper's head and thus delivered a fatal blow."
The omitted paragraph provides: "A person who aids and abets a crime is not guilty of that crime if he or she withdraws before the crime is committed. To withdraw, a person must do two things: [¶] 1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime. [¶] AND [¶] 2. He or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden, you may not find the defendant guilty under an aiding and abetting theory." (CALCRIM No. 401.)
"It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
"[I]n a case involving general liability as an aider and abettor for the originally contemplated crime, a defendant will not be liable for the contemplated crime despite the fact that he aided, promoted, encouraged, or instigated the commission of the crime with the intent that it be committed, if he effectively withdraws from participation in the crime before it is committed." (People v. Fiu (2008) 165 Cal.App.4th 360, 384.) "To be entitled to an instruction on the withdrawal defense, a defendant charged with aiding and abetting a crime must produce substantial evidence showing that (1) he notified the other principals known to him of his intention to withdraw from the commission of the intended crime or crimes, and (2) he did everything in his power to prevent the crime or crimes from being committed. [Citations.]" (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
Appellant's alleged statements-Well, I'm out of here. I'm getting out of here" and "I don't want nothing to do with this"-before retreating to his vehicle may have satisfied the first prong of the test-notification of intent to withdraw-but not the second. There was no evidence that appellant did everything in his power to stop the beating of Hopper after Bennett allegedly pushed Hopper to the ground and started kicking and stomping on him. Appellant did not try to intervene again, as he claimed he did initially, or try to pull his uncle off Hopper. Instead, he simply ran away while his uncle was purportedly delivering the fatal blows to Hopper. Appellant suggests his actions satisfied the second prong because, by beginning to drive away, he effectively caused his uncle to stop beating Hopper so he could run to get in the car. Appellant's charitable reading of his actions is undercut by the fact he then simply abandoned Hopper after allegedly witnessing him be severely beaten by his uncle. We do not believe the circumstances constituted substantial evidence that appellant did everything in his power to prevent the crime from being committed and the trial court was not, therefore, obliged to give the withdrawal instruction.
IV. Conspiracy Instructions
Appellant, relying on People v. Baker (1999) 74 Cal.App.4th 243 (Baker), argues the trial court erroneously instructed the jury with CALCRIM No 417 ("Liability for Coconspirators' Acts") regarding conspiracy felony murder. We agree but conclude the record demonstrates any error in instructing the jury with CALCRIM No. 417 was harmless.
Respondent asserts that appellant waived this challenge to CALCRIM No. 417 by failing to object below. We reject this assertion. "[Penal Code] section 1259 states, inter alia, 'The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.' [Citations.]" (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6.)
The trial court instructed the jury with CALCRIM No. 417, in part, as follows:
"To prove that the defendant is guilty of the crime charged in Counts 1, the People must prove that:
"1. The defendant conspired to commit one of the following crimes: force likely to commit great bodily injury;[]
"2. A member of the conspiracy committed murder to further the conspiracy;
"AND
"3. Murder was a natural and probable consequence of the common plan or design of the crime the defendant conspired to commit."
The parties on appeal appear to agree this language refers to the predicate crime of assault with force likely to produce great bodily injury. In this regard, the jury was instructed pursuant to CALCRIM No. 416 ("Evidence of Uncharged Conspiracy"), which provided, in part: "To prove that the defendant was a member of a conspiracy in this case, the People must prove that: [¶] 1. The defendant intended to agree and did agree with Johnnie Bennett or Charlie Peters to commit assault with force likely to commit [sic] great bodily injury; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit assault with force likely to commit [sic] great bodily injury; [¶] 3. The defendant, or Johnnie Bennett or Charlie Peters, or all of them committed the following overt act to accomplish [assault by] force likely to commit [sic] great bodily injury; Lured the victim into the car, drove victim to the orchard, got him out of the car and stomped on his face and beat him and left him there. [¶] AND [¶] This overt act was committed in California." The jury was also instructed pursuant to CALCRIM No. 875, on the elements of the crime of assault with force likely to produce great bodily.
In Baker, the defendants were charged with murder, attempted murder, assault with a deadly weapon, conspiracy to commit assault with a deadly weapon, and residential burglary. (Baker, supra, 74 Cal.App.4th at p. 247.) The defendants claimed the instruction presented to the jury on the theory of conspiracy felony murder was legally insufficient, as assault with a deadly weapon was not one of the listed felonies in Penal Code section 189 that governs the felony murder rule. (Baker, at p. 248.) The court in Baker agreed and reversed the judgment. (Ibid.)
Although, as respondent notes, the language of CALCRIM No. 417 given in this case is somewhat different than the language of CALJIC No. 8.26 given in Baker, like the Baker instruction, the instruction here erroneously told the jury it could find appellant guilty of murder if it found appellant conspired to commit the crime of assault with force likely to cause great bodily injury. As Baker makes clear, this crime will not support a conspiracy felony murder conviction. Thus, the jury was improperly instructed.
The trial court in Baker instructed the jury pursuant to CALJIC No. 8.26 as follows: "'If a number of persons conspire together to commit assault with a deadly weapon or by means of force likely to produce great bodily injury, and if the life of another person is taken by one or more of them in furtherance of the common design, and if the killing is done to further that common purpose or is an ordinary and probable result of the pursuit of that purpose, all of the co-conspirators are equally guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.'" (Baker, supra, 74 Cal.App.4th at p. 248.) "The jury [in Baker]was also instructed on first degree murder based upon premeditation, second degree murder, aiding and abetting, and conspiracy." (Ibid.)
The instructional error was, however, harmless. In People v. Green (1980) 27 Cal.3d 1, 69 (Green), the court held that "when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." In People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 (Guiton), the court construed Green as applying only to cases of legal insufficiency, holding that where, as here, "the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute ... the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Fn. omitted.) While not called upon to decide the exact standard of review in cases governed by Green, the Guiton court noted that the general rule of reversal has not been universal. "One way of finding this kind of error harmless has long been recognized. Sometimes it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [Citations.]" (Guiton, supra, 4 Cal.4th at p. 1130.) "There may be additional ways by which a court can determine that error in the Green situation is harmless. We leave the question to future cases." (Id. at p. 1131.)
In the present case, the prosecution did not pursue the conspiracy felony-murder theory on which the jury was erroneously instructed. In closing argument, the prosecutor expressly told the jury that it had only "two options in this case for coming to first degree murder.... [¶] One is willful, deliberate, and premeditated; and one is lying in wait." The trial court also instructed the jury pursuant to CALCRIM No. 521 that the prosecution was pursuing only those two theories of first degree murder:
'The defendant has been prosecuted for first degree murder under theories: 1) 'the murder was willful, deliberate and premeditated' and 2) 'the murder was committed by lying in wait.' Each theory of first degree murder has different requirements, and I will instruct you on both theories. [¶] You may not find the guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not need to agree on the same theory." (Italics added.)Moreover, in response to the jury's question discussed above, the trial court specifically instructed the jury: "The prosecution has put forth two theories of first degree murder: 1. Willful, deliberate and with premeditation, and 2. Lying in wait.... If you find that neither of these theories apply, then the defendant could not be found guilty of first degree murder ...." (Italics added.)
The record thus shows that the jury was clearly and repeatedly informed that it could only find appellant guilty of first degree murder under either of one the two valid legal theories pursued by the prosecution. Read in context with the other instructions to the jury, it is evident that the challenged conspiracy instruction was not offered as an additional theory of liability. On the unique record in this case, we are confident that jurors based their findings of first degree murder on one of the two valid theories of first degree murder presented by the trial court's instructions, and emphasized in the prosecutor's argument, and that the erroneous conspiracy instruction was harmless under Green and Guiton.
It appears the conspiracy instructions were given in this case as a result of the trial court's pretrial ruling granting the prosecution's in limine motion to admit statements by Bennett and Charlie, made during the drive to Jerry Hopper's house, under the hearsay exception in Evidence Code section 1223 for statements made in furtherance of a conspiracy. Thus, in addition to the challenged instruction, the court gave the jury CALCRIM No. 418 ("Coconspirator's Statements"), which provided, in part: "In deciding whether the People have proved that the defendant committed the crime charged, you may not consider any statement made out of court by Johnnie Bennett or Charlie Peters unless the People have proved by a preponderance of the evidence that: [¶] 1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made; [}] 2. Johnnie Bennett or Charlie Peters made the statement in order to further the goal of the conspiracy; [¶] AND [¶] 4. The statement was made before or during the time that the defendant was participating in the conspiracy." The bench notes to CALCRIM No. 418 state, inter alia, that "[t]he court has a sua sponte duty to instruct on the use of a coconspirator's statement to incriminate a defendant if the statement has been admitted under Evidence Code section 1223...." and "[t]he court must also give either CALCRIM No. 415, Conspiracy, or CALCRIM No. 416, Evidence of Uncharged Conspiracy, with this instruction." (Emphasis in original.) As stated in footnote 15, ante, the trial court also instructed the jury here with CALCRIM No. 416, in compliance with the bench notes.
--------
V. Sufficiency of the Evidence
Appellant contends insufficient evidence supported his first degree murder conviction under the prosecution's theory that he committed willful, deliberate and premeditated murder because the prosecution failed to show an intent to kill. He stresses evidence that Hopper was still alive and asserts "Hopper would not have been left alive if Bennett or appellant intended that he die in the orchard." We reject appellant's contention and find sufficient evidence of intent to kill.
The standard of review is familiar: "On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]'" (People v. Thomas (1992) 2 Cal.4th 489, 514, first and second bracketed insertions added.)
In this case, the jury had before it substantial evidence from which it could find appellant intended to mortally injure Hopper, notwithstanding evidence Hopper was still alive when appellant left him. Express malice, or intent to kill, requires more than knowingly placing the victim's life in danger: it requires at least that the assailant either "'"desire the result,"'" i.e., death, or "'"know, to a substantial certainty, that the result will occur."'" (People v. Davenport (1985) 41 Cal.3d 247, 262.) In bragging to Smart and Manuel about beating Hopper, appellant stated that Hopper would die if no one found him in a couple hours, reflecting appellant's awareness that the injuries he inflicted on Hopper were fatal in nature. The evidence also showed the area where appellant drove, beat, and left Hopper was rural and remote and, therefore, the likelihood Hopper would be timely found and rendered life-saving medical attention was greatly diminished, in contrast with, for example, if appellant had beaten Hopper in the town of Porterville where he first encountered him. Viewing the evidence in the light most favorable to the prosecution, the jury could have found that appellant intended to kill Hopper when he drove him to a remote location, severely beat him, and then left him there to die.
Our conclusion is not altered by the authorities appellant cites to support his assertion that "[e]vidence that a defendant left his victim alive is compelling evidence of lack of intent to kill and absence of premeditation." These authorities are inapposite as they involve claims of instructional error, not challenges to the sufficiency of the evidence. (Richie v. Workman (10th Cir. 2010) 599 F.3d 1131, 1135 [denial of defendant's "request for a lesser-included instruction on second-degree depraved-mind murder"]; People v. Haley (2004) 34 Cal.4th 283, 310 [failure to instruct "defendant must have intended to kill [the victim] in order to be convicted of the felony-murder special circumstance"]; People v. Dickson (1985) 167 Cal.App.3d 1047, 1060 [same].) While the evidence in this case might be susceptible to the interpretation appellant suggests, in light of all the circumstances discussed above, the opposite interpretation is also reasonable; i.e. that appellant intended to kill the victim by severely beating him and then leaving him, knowing him to be fatally injured, in a remote area where the chances of his being discovered were low.
VI. Correction of Abstract of Judgment
The trial court imposed direct victim restitution pursuant to Penal Code section 1202.4, subdivision (f) in the amount of $8,760.67. The court orally ordered the restitution to be "payable as articulated in the probation report." The probation report recommended that appellant "be ordered to pay restitution in the amount of $8,790.67, jointly and severally with all co-defendants." The abstract of judgment reflects the restitution award, without reflecting that the obligation is joint and several. Appellant contends, respondent concedes, and we agree that the abstract of judgment must be corrected to reflect that the victim restitution is imposed jointly and severally upon all codefendants.
DISPOSITION
The judgment is affirmed. The matter is remanded with directions to the trial court to correct the abstract of judgment to reflect that the victim restitution is joint and several and to forward the amended abstract of judgment to the appropriate authorities.
_____________
HILL, P.J.
WE CONCUR:
_____________
GOMES, J.
________________
DAWSON, J.