Opinion
F070033
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL VASQUEZ, Defendant and Appellant.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin L. Quade, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09CM0397C)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
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Jose Manuel Vasquez is serving life in prison without the possibility of parole (LWOP) for committing felony murder. A jury found him guilty based on a theory of aiding and abetting under special circumstances involving a failed carjacking attempt. He was also convicted of attempted carjacking and being a felon in possession of a firearm.
Vasquez makes numerous claims on appeal. We find merit in only one of his contentions, which is the lack of evidence to support the special circumstance finding that resulted in a statutorily mandated LWOP sentence. There was sufficient evidence to prove felony murder, but the prosecution failed to show Vasquez had the intent to kill or acted with reckless disregard for life as required by Penal Code section 190.2. We reverse the special circumstance finding, affirm the judgment in all other respects, and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Vasquez and codefendants David Bonner, Jr. and Benjamin Martinez were charged by information with murder (Pen. Code, § 187, subd. (a); count 1); attempted carjacking (§§ 215, subd. (a), 664; count 2); and possession of a firearm by a convicted felon (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1)]; count 3). Bonner and Martinez were also accused of committing additional crimes. The murder was alleged to have occurred under special circumstances within the meaning of section 190.2, subdivision (a)(17), i.e., during the commission of an attempted carjacking. Firearm enhancement allegations were pleaded against Bonner and Vasquez in counts 1 and 2 pursuant to section 12022.53, subdivisions (b), (c), and (d). Vasquez was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)).
Except where otherwise specified, all further statutory references are to the Penal Code.
All charges pertained to events that occurred in February 2009. In 2012, Vasquez successfully moved to have his case severed from the proceedings against Bonner and Martinez. His jury trial took place in July 2014.
Prosecution Case
On February 14, 2009, Eric Gomez (age 24) was found dead inside of his truck near the intersection of State Route 43 and Excelsior Avenue in Kings County. Officer Jared Lehner of the California Highway Patrol discovered the body after a motorist directed his attention to a white truck that had driven off the road and crashed into a barn. The truck's engine was running and loud music was playing on the sound system. Upon closer inspection, the officer saw a bullet hole and the decedent sitting motionless in the driver's seat.
Sheriff's deputies were dispatched to the crime scene at approximately 9:16 a.m. Officer Lehner testified that it was after 9:00 a.m. when he first noticed the white truck, which proved relevant to determining when the homicide occurred. He also remembered driving past a silver-colored Chevrolet pickup truck headed north on State Route 43 approximately one minute prior to when the aforementioned motorist pointed him toward the barn. The driver of the silver truck had been laughing, but suddenly looked concerned when he saw the patrol car. Officer Lehner thought little of it at the time, as he assumed the driver was worried about getting a speeding ticket.
Detectives obtained surveillance footage from a gas station located at 12th Avenue and Lacey Boulevard in Hanford that showed the victim's truck on the premises between approximately 8:56 a.m. and 9:02 a.m. the morning of his death. The jury viewed a collection of still images showing a silver/grey Chevrolet pickup truck entering the gas station immediately behind the victim. The truck drove past the fuel pumps and around to the back of the building before dropping off a passenger who appeared to then walk toward the front of the station. Other images showed this person being accompanied by a second individual as he returned to the rear of the building. Meanwhile, the victim parked his truck near an air compressor and later moved in front of a fuel pump before departing from the station. The victim's truck had distinct features, including a height adjustable suspension system and Lamborghini-style doors, aka scissor doors, meaning the doors opened vertically instead of outward.
An autopsy confirmed the victim died from gunshot wounds. He was struck from behind by two bullets; one entered his brain and the other traveled through the left chest, lacerating his aorta. The bullets were recovered and sent to a crime lab for forensic analysis.
Investigators found seven expended shell casings on Excelsior Avenue and removed four bullets from the victim's truck. The latter items were .45-caliber in size. The victim was shot in the head with a .38-caliber bullet, which suggested the use of two different guns.
The Kings County Sheriff's Department received a tip about the involvement of Bonner, Martinez, and Vasquez. Vasquez was arrested, waived his right to remain silent, and submitted to interrogation by multiple deputies including a detective named Robert Balderama. The jury saw portions of Vasquez's video-recorded interviews, but most of the pertinent information from those sessions was relayed through Detective Balderama's testimony. The prosecution likely did this because of the disjointed and often confusing manner in which Vasquez had recounted the events on camera.
Vasquez initially denied knowing anything about the victim's death. He then claimed to have heard David Bonner "bragging" about what had happened. He eventually admitted to being present when the shooting took place but denied complicity in the crime.
According to Vasquez, he and Bonner went to a casino on Friday, February 13, 2009 and stayed there all night. Benjamin Martinez picked them up in Lemoore early Saturday morning and the group drove around for a while in Martinez's truck, "cruising neighborhoods" in search of cars for sale. They travelled to Hanford to get breakfast, which is where they first saw the victim. Bonner and Martinez liked the victim's truck and decided to follow it into the gas station on 12th Avenue and Lacey Boulevard. Vasquez responded evasively to questions concerning what Bonner and Martinez actually said about stealing the truck, but he admitted they had "planned it out" before entering the gas station.
When shown the images captured by surveillance cameras, Vasquez confirmed it was Martinez's Chevrolet pickup that entered the gas station behind the victim. Bonner was the individual shown walking toward the front of the gas station. Vasquez also got out of Martinez's truck, purportedly to buy a snack, but never went inside the building. His companions told him to come back, so he returned and got into the back seat of Martinez's truck. The prosecution theorized that Bonner and Vasquez intended to carjack the victim at the gas station but ultimately decided the location posed too much of a risk.
After reconvening at Martinez's truck, the group followed the victim out of town. They travelled north on 12th Avenue to Excelsior Avenue and stayed behind their target until he approached the intersection of Excelsior and State Route 43. Next, acting pursuant to Bonner's instructions, Martinez sped past the victim and stopped in front of him, blocking his path. Bonner got out of the front passenger seat with a gun in each hand and ordered the victim to surrender his vehicle. The victim tried to drive away, which is when Bonner opened fire. Vasquez heard the shots but denied witnessing the shooting. He did recall seeing a law enforcement vehicle (presumably Officer Lehner's patrol car) pass them as they were driving away from the crime scene.
Subsequent to the interrogation of Vasquez, sheriff's deputies searched Martinez's residence and found a silver Chevrolet pickup truck that was registered in his name. It appeared to have been recently washed and detailed. A search of the home yielded an ammunition clip for a .380-caliber handgun.
The gun that fired the bullet removed from the victim's head was never recovered. However, Bonner's brother-in-law turned over to the sheriff's department a .45-caliber Colt pistol that Bonner had given to him under suspicious circumstances. The pistol was tested against the other bullets in evidence. The results were inconclusive, but the prosecution's firearms expert opined that the bullet removed from the victim's chest and some of those recovered from the victim's truck were "probably fired" from that gun.
The prosecution's case-in-chief concluded with testimony from Louie Oliveira, Jr. Mr. Oliveira's sons were friends with Bonner, and Bonner had visited his home shortly before and after the victim's death. On the earlier occasion, which was estimated to be two weeks prior to the shooting, Bonner came to the residence with Martinez and Vasquez. While sitting around a table "getting high," Bonner and Martinez discussed a plan to "hijack" a white pickup truck with Lamborghini-style doors. Vasquez was present for part of this conversation, but left the room when they began to talk about stealing the truck.
Bonner and Martinez visited Mr. Oliveira's home again the day before their arrest. They were in need of money and offered to sell him a handgun for $150. Martinez made a comment about "something that had happened" and predicted Mr. Oliveira would "see it on the news."
Defense Case
Louie Oliveira's son, Jesse, was the only defense witness. Jesse disputed his father's recollection of the incriminating statements made by Bonner and Martinez two weeks prior to the shooting. He believed Vasquez was "locked up" at that time and could not have been present to hear the alleged conversation.
Jesse corroborated his father's testimony about Bonner's and Martinez's visit the night before they were arrested. He remembered them talking about going to Mexico and wanting to find a buyer for a .380-caliber handgun. Martinez had made a cryptic remark about Bonner, saying, "It was him," which Jesse did not understand until he learned of their involvement in this case. The witness also testified to having seen Bonner in possession of .38-caliber and .45-caliber pistols on prior occasions.
Vasquez stipulated to having a prior felony conviction for purposes of count 3, i.e., the firearm possession charge. As a result, the jury did not learn of his prior conviction for committing vehicular manslaughter while intoxicated. Vasquez also admitted the truth of the prior strike and serious felony conviction allegations.
Verdicts and Sentencing
The jury returned guilty verdicts on the offenses charged in counts 1-3, but found the firearm enhancement allegations were not true. A true finding was returned on the special circumstance allegation. Based on the latter finding, Vasquez was sentenced on count 1 to LWOP plus five years for the prior serious felony conviction. The sentence for count 2 consisted of the upper term of nine years for attempted carjacking plus five years for the prior serious felony, all of which was stayed pursuant to section 654. For count 3, Vasquez received a consecutive six-year term (the upper term of three years for unlawful firearm possession, doubled because of the prior strike) and a stayed five-year enhancement for the prior conviction.
DISCUSSION
Sufficiency of the Evidence
Vasquez challenges the sufficiency of the evidence supporting his convictions on counts 1 and 2 and the special circumstance finding under section 190.2, subdivision (a)(17)(L). In a related claim, he invokes the corpus delicti rule as to counts 2 and 3, arguing the prosecution relied exclusively on out-of-court statements by him and his accomplices to prove the charged offenses were committed. We reject his arguments regarding the convictions, but agree with his position on the special circumstance finding.
Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.) The same standard applies to the sufficiency of the evidence supporting a special circumstance finding. (Ibid.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Counts 1 & 2
The prosecution argued Vasquez was guilty of felony murder as a direct perpetrator of attempted carjacking, i.e., that he was one of two gunmen who shot at the victim. Given its rejection of all firearm enhancement allegations, it appears the jury adopted the alternative theory of felony murder based on aiding and abetting principles. Vasquez contends there is insufficient evidence of his role as an aider and abettor. We disagree.
"Under the felony-murder rule those who commit enumerated felonies are ' "strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony." ' " (People v. Romero and Self (2015) 62 Cal.4th 1, 41.) Section 189 provides the list of qualifying offenses, which includes attempted carjacking. Carjacking is defined as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence ... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).) Criminal attempt consists of two elements: "a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.)
"A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (People v. Marshall (1997) 15 Cal.4th 1, 40, quoting People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman).) Vasquez's statements to police described conduct by David Bonner that satisfied the elements of attempted carjacking. The question is whether the jury could have interpreted Vasquez's behavior as aiding and abetting. He contends the prosecution failed to refute his version of the events, i.e., "that he was merely a passenger in the back seat of the pickup who protested as the others chased [the victim] into the outskirts of town."
Knowledge of the direct perpetrator's criminal intent is supported by the testimony of Louie Oliveira and Vasquez's statements under questioning. According to Mr. Oliveira's testimony, Vasquez overheard Bonner and Martinez planning to "hijack" a "white pickup with [] Lamborghini doors." When detectives asked Vasquez what happened when his companions first spotted the victim in his truck, he recalled one of them saying "let's do it" and Bonner telling Martinez to "follow him." Vasquez admitted Bonner was acting "suspicious" at the gas station, which supposedly prompted him to ask, "What are you trying to do?" These and other statements made during the custodial interviews are reasonably interpreted as demonstrating his knowledge, prior to leaving the gas station, that Bonner intended to commit a carjacking.
In addition to drawing inferences from the interview excerpts used at trial, the jury was permitted to rely on Detective Balderama's testimony that Vasquez admitted to knowing what Bonner and Martinez were planning to do when they first began following the victim. Specifically, he knew "[t]hey were going to get the ride, and that [Martinez] wanted parts of that vehicle." Detective Balderama was asked if Vasquez actually told him "that he knew what was going to go down at [the gas station]," and he replied, "Yes."
Proof of the remaining elements is circumstantial. " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) " 'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " (Id. at p. 1054.) "Although defendant's ' "mere presence alone at the scene of the crime is not sufficient to make [him] a participant" ' his presence in the car ' "may be [a] circumstance[] that can be considered by the jury with the other evidence in passing on his guilt or innocence." ' " (Id. at p. 1055.)
The evidence suggested a close relationship between Bonner and Vasquez. According to the prosecution's timeline, Vasquez was with Bonner two weeks prior to the shooting and heard him talk about wanting to steal the victim's truck. Vasquez admitted to detectives that he went target shooting with Bonner and Martinez on a subsequent occasion. He was with Bonner again the night before the attempted carjacking and told detectives Bonner had gotten into a fight that evening. The latter incident was disclosed to account for the possibility that his fingerprints might be found on one of Bonner's guns; Vasquez said Bonner handed him a black pistol to hold while he fought. It can thus be inferred that Vasquez knew Bonner was armed when the group followed the victim to the gas station.
The incident at the gas station was probative of Vasquez's mental state, as his behavior suggested he was engaged in some type of reconnoitering activity. He offered multiple confusing and contradictory stories about what he and Bonner were doing at the time, one of which involved an encounter with his sister's boyfriend in front of the station. Vasquez told detectives he "shoulda just gone with [his] sister's boyfriend" instead of leaving the station with Bonner and Martinez. This remark underscores the significance of his choice at that juncture. Given the evidence of his knowledge of the perpetrators' intentions, the decision to get back into Martinez's truck before they followed the victim out of town can be interpreted as encouragement and support.
Vasquez remained in close contact with Bonner and Martinez following the attempted carjacking and murder. He recalled socializing with them the next day, when both men read with amusement a news story about the victim's death. This evidence is also probative of the elements of aiding and abetting. Viewed in the light most favorable to the judgment, considering the factors of presence, companionship, and conduct before, during, and after the commission of the crimes, the record permits a reasonable inference of Vasquez's guilt as an aider and abettor.
Corpus Delicti
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself - i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) The prohibition against convicting a defendant of a crime based solely on out-of-court statements is known as the corpus delicti rule. (People v. Ray (1996) 13 Cal.4th 313, 341; Jones v. Superior Court (1979) 96 Cal.App.3d 390, 396 [applying the rule to out-of-court statements made by codefendants].) "Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. ... This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Alvarez, supra, 27 Cal.4th at p. 1169.)
Before the enactment of article I, section 28, subdivision (d) of the California Constitution in 1982 (Proposition 8), the corpus delicti rule operated in part as a prerequisite to the admission of a defendant's extrajudicial statements at trial. Prosecutors had to first introduce evidence showing a charged crime was in fact committed before the defendant's statements could be used to connect him or her to the offense. (See Alvarez, supra, 27 Cal.4th at pp. 1165, 1170.) The enactment of Proposition 8 "abrogate[d] any corpus delicti basis for excluding the defendant's extrajudicial statements from evidence." (Id. at p. 1165.) The corpus delicti rule remains viable today "insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and that the jury must be so instructed." (Ibid., original italics.) "The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency." (Id. at p. 1171.)
Vasquez construes the corpus delicti rule as requiring the trier of fact to find all elements of the charged offense without "aid, interpretation, or direction from the defendant's [out-of-court] statement[s]." His arguments are directed at the verdicts on counts 2 and 3, with greater emphasis on the latter. We pause here to summarize the prosecution's theory of liability for count 3 to better frame the issue.
During a custodial interview, Vasquez admitted to firing a handgun while target shooting with Bonner and Martinez in the "country" three or four days prior to the victim's death. He later accompanied detectives to the exact location, leading them to a field near 24½ and Elder Avenues in Riverdale. Multiple expended shell casings were found in the area and a photograph was taken of a street sign with bullet holes in it, which was admitted into evidence at trial. During closing argument, the prosecution stated that the felon in possession of a firearm charge was based on "the target shooting out in the country where they were shooting at signs."
Vasquez raises a contingent claim of instructional error based on the absence of a unanimity instruction since there were multiple factual scenarios upon which count 3 could have been based. He concedes no such instruction was required if the prosecutor's statements are construed as an election of a particular set of facts for unanimity purposes. (People v. Mayer (2003) 108 Cal.App.4th 403, 418.) We agree with the People that the prosecution's closing argument constituted an election of a specific act, and thus find no error.
Returning to the argument on appeal, Vasquez maintains that while there was independent evidence of someone possessing a firearm, the jury could not reasonably infer the possessor's status as a previously convicted felon without relying on his out-of-court confession. His position is difficult to reconcile with the language in Alvarez, supra, which describes the corpus delicti rule as requiring "corroboration of the defendant's extrajudicial utterances," by "some proof of the corpus delicti aside from or in addition to such statements." (27 Cal.4th at pp. 1165, 1178.) "If otherwise admissible, the defendant's extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed." (Id. at p. 1180.)
In People v. Jones (1998) 17 Cal.4th 279 (Jones), a defendant challenged the sufficiency of the evidence as to the corpus delicti of oral copulation within the meaning of section 288a, subdivision (a) ["the act of copulating the mouth of one person with the sexual organ or anus of another person."]. The defendant told police that his accomplice forced the victim to perform oral sex on him prior to killing her, but the decedent's body showed no signs of that particular act having occurred. There was, however, evidence of bruising and recent vaginal intercourse. (Jones, supra, 17 Cal.4th at p. 300, 302.) The California Supreme Court rejected the defendant's claim, noting it had "never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary." (Id. at p. 303.)
The Jones opinion discusses earlier cases illustrating the same point. The victim in People v. Robbins (1988) 45 Cal.3d 867 (Robbins) was a six-year-old boy last seen riding on a motorcycle with an unknown man. As summarized in Jones: "The boy's skeletal remains were found three months later. ... Although the decomposed remains of the victim could not establish whether he had been sexually assaulted before his death, the defendant made an extrajudicial admission that he abducted the victim and sexually assaulted him before strangling him." (Jones, supra, 17 Cal.4th at p. 303.) Contrary to the defendant's argument on appeal, the lack of evidence of molestation did not preclude the jury's finding that he committed a lewd or lascivious act against a minor. The absence of clothing near the victim's remains was enough to corroborate the extrajudicial admission: "In view of the nature of the offense and the circumstances of this case (i.e., the body was not discovered for some time, hence it was impossible to verify the sexual conduct by scientific evidence, and there were apparently no eyewitnesses to the crime) we do not believe the corpus delicti rule can be interpreted to call for more; the law does not require impossible showings." (Robbins, supra, 45 Cal.3d at pp. 885-886.)
In summary, "[t]o convict an accused of a criminal offense, the prosecution must prove that (1) a crime actually occurred, and (2) the accused was the perpetrator." (Alvarez, supra, 27 Cal.4th at p. 1164.) The first of these components is the corpus delicti, which "cannot be proved by exclusive reliance on the defendant's extrajudicial statements." (Ibid.) When independent evidence of the corpus delicti is presented at trial, the trier of fact may draw inferences from both the intrinsic probative value of the evidence and its significance in relation to the defendant's incriminating statements.
With regard to count 3, Vasquez stipulated to his status as a previously convicted felon and was shown to have admitted possessing a firearm at a particular time and place. The resulting conviction was not based solely on his extrajudicial statements. Detective Balderama testified to being led by Vasquez to the locus of the crime and to the discovery of shell casings by other deputies following a search of the area. The out-of-court statements were further corroborated by the photograph of a bullet-riddled street sign in the same location. Given the nature of the offense and the surrounding factual circumstances, we conclude the prosecution satisfied its burden of establishing the corpus delicti without exclusive reliance on Vasquez's confession. (See Robbins, supra, 45 Cal.3d at p. 886; Jones, supra, 17 Cal.4th at p. 301 ["The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as 'slight' [citation] or 'minimal' "].)
We are no more persuaded by Vasquez's arguments concerning the corpus delicti for count 2. He contends the jury was limited to drawing inferences from the crime scene evidence and "nothing about the manner of the killing suggested an intent to steal the victim's truck." In our view, the record contains several pieces of evidence that adequately corroborate Vasquez's statements about the attempted carjacking, including the combination of surveillance footage showing the perpetrators following the victim to and from the gas station, the presence of shell casings on Excelsior Avenue, and distinctive features of the victim's truck that reportedly enticed the perpetrators to commit the offense. The proof is circumstantial, but "[t]he corpus delicti may be proved by direct or circumstantial evidence as well as by other acts evidence." (People v. Huynh (2012) 212 Cal.App.4th 285, 301.)
Vasquez does have a valid complaint regarding the trial court's failure to instruct the jury on the corpus delicti rule. When the prosecution relies on a defendant's extrajudicial statements to prove its case, the trial court must "instruct the jury that such statements cannot be the sole proof the crime occurred." (Alvarez, supra, 27 Cal.4th at p. 1181.) The omission of this instruction necessitates a harmless error analysis. "Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given." (Ibid.)
We perceive no likelihood of a properly instructed jury failing to recognize that the prosecution's case with respect to counts 2 and 3 was not based solely on Vasquez's out-of-court statements. The prosecutor highlighted the corroborating evidence for count 3 during closing argument: "We saw the bullet holes. The officer testified that there were bullets and casings found near the area." Defense counsel acknowledged the same evidence in an attempt to compare the relative strength of the prosecution's showing on count 3 to its purportedly weaker position as to counts 1 and 2: "He said it. 'We shot guns at the sign.' That part, I suppose, the evidence does support. It's his statement. They found the shell casings. They found the holes in the wall, the signs. [But] there's nothing else that [rises] to that level of having an abiding conviction." The corroborating evidence for count 2 was also mentioned during closing arguments. Under the circumstances we have discussed, it is not reasonably probable the jury would have returned different verdicts had the corpus delicti instruction been given.
Special Circumstance Finding
Section 190.2 contains a list of "special circumstances" under which the only sentencing options for a defendant found guilty of murder are death or LWOP. The statute applies to a murder "committed while the defendant was engaged in, or was an accomplice in, the commission of, [or] attempted commission of," carjacking as defined in section 215. (§ 190.2, subd. (a)(17)(L).) "It is sufficient if the defendant is the actual killer or either intends to kill or 'with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission' of the felony." (People v. Rountree (2013) 56 Cal.4th 823, 854, quoting § 190.2, subd. (d).)
The People concede, and we agree, the record does not contain adequate proof that Vasquez was the actual killer or acted with an intent to kill the victim. The parties dispute whether there is sufficient evidence of him aiding and abetting the target felony as a "major participant" and with reckless indifference to life. We conclude the mens rea component was not satisfied, which makes it unnecessary to determine if he was otherwise a major participant in the offense.
In closing argument to the jury, the prosecutor said the element of reckless indifference could be inferred from the very nature of the predicate felony: "How does anyone not know that carjacking with guns is not [sic] dangerous to human life? There should be very little controversy about this particular definition and what happened in this case." Recent decisions by the California Supreme Court hold otherwise. As explained in People v. Banks (2015) 61 Cal.4th 788 (Banks), a defendant's knowledge that his accomplices are armed and of the possible risk of death inherent in certain felonies does not alone constitute proof of reckless indifference to life for purposes of section 190.2. The prosecution must show the aider and abettor "knew his own actions would involve a grave risk of death." (Banks, supra, 61 Cal.4th at p. 807, italics added.)
In Banks, a jury found the defendant liable under section 190.2 for his role as the getaway driver in an armed robbery of a medical marijuana dispensary. The defendant had been waiting at a nearby location when his accomplices encountered resistance from a security guard. One of them shot and killed the guard while attempting to flee the scene. The defendant subsequently picked up two of the accomplices in an effort to facilitate their escape. (Banks, supra, 61 Cal.4th at pp. 794-797.) The California Supreme Court granted review after an appellate panel affirmed the judgment on grounds that the defendant's "actions as a getaway driver in supporting the underlying robbery, with knowledge death was always a possibility in an armed robbery, were legally sufficient under section 190.2(d)." (Id. at p. 797.) The high court reversed, concluding the evidence was insufficient as a matter of law to support the special circumstance finding. (Id. at p. 794.) For our purposes, the essential holding of Banks is as follows: "Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the [reckless indifference requirement]." (Id. at p. 808.)
In contrast to the felony murder statute, which calls for strict liability based on the nature of the target offense, section 190.2 "imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (Banks, supra, 61 Cal.4th at p. 798.) "Because the elements are different, what is sufficient to establish the elements for an aider and abettor of first degree felony murder is not necessarily sufficient to establish the elements of the felony-murder aider and abettor special circumstance." (People v. Clark (2016) 63 Cal.4th 522, 616 (Clark).) The evidence supporting the actus reus and mens rea may overlap, and several factors are relevant to both components. (Id. at p. 615.) Probative considerations include: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted; accord, Clark, supra, 63 Cal.4th at pp. 619-622.)
Proof of Vasquez's role in planning the attempted carjacking or supplying the guns that were used is lacking. The prosecution's own witness, Louie Oliveira, testified that while Vasquez overheard Bonner and Martinez plotting the crime, he did not appear interested in their plan. By all accounts, the guns used in the offense belonged to the accomplices.
Setting aside the inherently dangerous nature of armed carjacking, there was no evidence of the accomplices' propensity for gun violence. (See Clark, supra, 63 Cal.4th at p. 621 ["A defendant's willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a 'grave risk of death.' "].) Bonner had allegedly been in a fight the previous evening, but Vasquez said he disarmed himself before engaging in the altercation. Louie Oliveira, who had known Bonner since he was a child, testified to being surprised upon learning of Bonner's arrest for murder because he "didn't think David would do anything like that."
"A defendant's use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 618.) In this case, the jury's rejection of the firearm enhancements does not necessarily mean it believed the story about Bonner using two guns during the offense, but may instead reflect the proper conclusion that there was insufficient evidence to establish who, between Vasquez and Martinez, was the other shooter. As Vasquez argues in his briefs, a "coin flip" situation does not satisfy the substantial evidence test. (People v. Smith (2005) 135 Cal.App.4th 914, 927 (Smith).)
It can be inferred Vasquez aided and abetted by encouraging commission of the target crime, but it is too big a leap to conclude his actions facilitated the killing or that he was in a position to stop it from happening and chose not to intervene. He denied being armed and claimed to have rebuffed Martinez's attempt to hand him a pistol when Bonner exited the vehicle at the crime scene. There was no evidence to refute this contention, and if true it would weigh against a finding of reckless indifference. (Clark, supra, 63 Cal.4th at p. 622 ["a defendant's apparent efforts to minimize the risk of violence can be relevant to the reckless indifference to human life analysis.].) It is clear from the surveillance photographs that Martinez's vehicle was a two-door pickup truck, and again there is no evidence to disprove Vasquez's claim that he was seated in the rear cabin when the shooting occurred. Since the jury had no way of determining what Vasquez was doing when the crime was committed, it could not find beyond a reasonable doubt that his "own actions or inaction play[ed] a particular role in the death." (Banks, supra, 61 Cal.4th at p. 803.)
The two cases upon which the People rely were decided before Banks and are factually distinguishable. In People v. Hodgson (2003) 111 Cal.App.4th 566 (Hodgson), the defendant aided and abetted commission of the target felony by "[holding] open the electric gate of an underground parking garage of an apartment complex to facilitate the escape of his fellow gang member who had robbed and shot to death a woman just after she opened the gate with her key card." (Id. at p. 568.) The appellate court determined there was sufficient evidence of reckless indifference to life because (1) the use of a gun to effectuate a robbery necessarily presents a grave risk of death and (2) the defendant, when faced with the choice of coming to the victim's aid after she was shot or assisting his accomplice, chose to facilitate completion of the robbery by holding the garage gate open so the killer could escape with the loot. (Id. at p. 580.) In Smith, supra, the defendant's reckless indifference to life was demonstrated by his standing lookout in front of the victim's motel room "during the many tumultuous minutes" that passed as his accomplice stabbed and slashed the victim 27 times with a buck knife, repeatedly hit her in the face with a steam iron, and slammed her head against a wall, leaving a hole in the sheet rock. (135 Cal.App.4th at pp. 921, 927.) "In addition, when [the killer] emerged from her room covered in enough blood to leave a trail from the motel to [an adjacent street], [the defendant] chose to flee rather than going to [the victim's] aid or summoning help." (Id. at p. 927.)
The California Supreme Court has disapproved of Hodgson "to the extent it may be read to hold awareness a robbery accomplice is armed, without more, establishes the necessary subjective awareness of a grave risk of death." (Banks, supra, 61 Cal.4th at p. 809, fn. 8.)
There is no evidence that Vasquez facilitated the gun violence or, as in Hodgson, assisted his confederates after the shooting began. Likewise, the evidence does not show he made a choice between aiding and abetting or rendering assistance to the victim. The detectives pressed him to admit that he observed what happened to the victim after the shots were fired, but he insisted the last thing he saw before they fled was the victim's truck driving away, "trying to get outta there." The Smith case is distinguishable for the same reasons and because the evidence in this case suggested a crime of short duration, unlike the prolonged attack of the woman in the motel room.
The People further argue the attempted carjacking took place "on a country road specifically selected to avoid witnesses and bystander intervention," thereby increasing the risk of a fatal outcome. However, since the perpetrators were following the victim, they could only choose to strike somewhere along the path he led them. The record does not show this happened at a particularly remote location, as Officer Lehner testified to seeing "a group of traffic" driving through the area within minutes of the shooting. Most importantly, there is no evidence of Vasquez having any input into the decision regarding where the crime would be committed.
The Banks opinion makes clear that our analysis must focus on the defendant's own conduct, and whether such behavior supports a finding of subjective awareness that his personal participation in the felony carried a grave risk of death. For the reasons discussed, we conclude the required showing was not made. Therefore, the true finding on the special circumstance allegation must be reversed.
Absence of Lesser Included Offense Instructions
Vasquez submits that the evidence supported theories of second degree murder and involuntary manslaughter as lesser included offenses of first degree murder as pleaded in count 1. This argument was not made below. The claim on appeal is based on an alleged sua sponte instructional duty, which we find did not exist.
"A trial court has a sua sponte duty to 'instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (People v. Shockley (2013) 58 Cal.4th 400, 403.) Issues concerning the failure to instruct on a lesser included offense are reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
Vasquez has crafted an elaborate argument based on testimony by Louie Oliveira that Bonner and Martinez said "they were going to try to find out where the [victim] lived." The crux of the theory now raised is that Vasquez may have thought he was assisting the perpetrators in stealing an unattended vehicle. If the jury believed he only intended to aid and abet the target crime of grand theft or vehicle taking, it could have found him guilty of second degree murder under the natural and probable consequences doctrine. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117 ["an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' "].) The argument regarding involuntary manslaughter is similarly attenuated. In his words: "The jury could have found him guilty of involuntary manslaughter [] on a theory that the killing resulted from appellant's participation in a plan to commit vehicle taking or grand theft auto, and that he did so without due caution [] and circumspection because he knew that his accomplices were armed."
Although he avoids putting it in these terms, Vasquez essentially argues there was a sua sponte duty to instruct on uncharged offenses, namely grand theft and vehicle taking, and then explain how a finding of intent to aid and abet the uncharged offenses might support a verdict of something less than first degree murder. However, a trial court's sua sponte duty to instruct on an uncharged crime is generally limited to offenses that are "lesser than, and included in, a greater charged offense." (People v. Parson (2008) 44 Cal.4th 332, 348, italics added; see People v. Silva (2001) 25 Cal.4th 345, 371.) It is settled that grand theft (§§ 484, subd. (a), 487, subd. (d)(1)) and vehicle taking (Veh. Code, § 10851, subd. (a)) are not lesser included offenses of carjacking. (People v. Montoya (2004) 33 Cal.4th 1031, 1034-1035 [vehicle taking]; People v. Ortega (1998) 19 Cal.4th 686, 693 [grand theft].) Furthermore, a duty to instruct on the natural and probable consequences doctrine "arises only when the prosecution has elected to rely on the 'natural and probable consequences' theory of accomplice liability." (People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman); accord, People v. Huynh (2002) 99 Cal.App.4th 662, 677-678 (Huynh).) Even then, the trial court "need not identify all potential target offenses supported by the evidence, but only those that the prosecution wishes the jury to consider." (Prettyman, supra, 14 Cal.4th at p. 269.)
The prosecution's case was exclusively based on a theory of first degree felony murder. No attempt was made to invoke the natural and probable consequences doctrine, and the uncharged offenses of grand theft and vehicle taking did not form any part of the theories of criminal liability. Therefore, the trial court did not have a sua sponte duty to provide second degree murder or involuntary manslaughter instructions. (See Prettyman, supra, 14 Cal.4th at pp. 267, 269; Huynh, supra, 99 Cal.App.4th at pp. 677-678.)
Propriety of Requiring Benjamin Martinez to Take the Witness Stand
The prosecution subpoenaed Martinez to testify during its case-in-chief. In proceedings conducted outside the presence of jurors, Martinez stated his intention to invoke the Fifth Amendment privilege against self-incrimination. Upon further inquiry, the trial court correctly determined the privilege did not apply because Martinez had already pled guilty to charges stemming from his involvement in the case and waived his appeal rights. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez); see People v. Fonseca (1995) 36 Cal.App.4th 631, 637 ["the privilege expires when the time to file an appeal has passed with no notice of appeal filed."].) Nevertheless, Martinez made clear that he would not answer questions under any circumstances, even if it meant being found in contempt of court.
Relying on Lopez, supra, the trial court overruled various defense objections to Martinez being called as witness. Further efforts were made outside the presence of jurors to (1) confirm Martinez would at least swear or affirm to be truthful and (2) ensure the prosecution's examination would be relevant to the issues in dispute. The trial court concluded that Martinez affirmed to tell the truth by answering "yes" when asked, "So what you're telling me when you assert any Fifth or anything else, is it truthful?" On the issue of relevance, the prosecutor represented that she would be asking Martinez questions about his involvement in the underlying events. No additional showing could be made because Martinez refused to even confirm his full name. His response to every question posed was, "I have no answers for you."
Despite Martinez's behavior, the trial court allowed the proceedings to resume in front of the jury. As expected, the witness refused to testify and disobeyed the trial court's order to respond to questioning. This brief exchange concluded with Martinez being held in contempt and removed from the courtroom.
Vasquez alleges the trial court erred by allowing Martinez to be called as a witness. More specifically, he complains "[t]his procedure - allowing him to refuse testimony in the jury's presence - invited the jury to draw the inference that Martinez was withholding testimony that would support the People's case and prove appellant's guilt." Nearly all of the cases cited by Vasquez address the scenario in which an uncooperative witness is forced to take the stand only to have the jury see him or her assert their Fifth Amendment rights. When read in context, the holdings of these cases are not helpful to his position. For example, he offers the following quote from People v. Frierson (1991) 53 Cal.3d 730, 743: "Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference." The sentence preceding that quote, which Vasquez does not recite, places it in context: "No inference may properly be drawn from the invocation of a privilege." (Ibid.)
The authority upon which the trial court relied, Lopez, is indeed instructive: "Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. ... But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony." (Lopez, supra, 71 Cal.App.4th at p. 1554; accord, People v. Morgain (2009) 177 Cal.App.4th 454, 466-467; see Roberts v. United States (1980) 445 U.S. 552, 560, fn. 7 ["It is the duty of a court to determine the legitimacy of a witness' reliance upon the Fifth Amendment. [Citation.] A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give."].)
In his reply brief, Vasquez argues that because Martinez never took an oath, his refusal to testify does not constitute actual evidence. (See In re Heather H. (1988) 200 Cal.App.3d 91, 95 ["In the absence of a waiver, such as a failure to object or a stipulation, unsworn testimony does not constitute 'evidence' within the meaning of the Evidence Code."].) If true, and the issue on appeal does not concern the admissibility of evidence, the question is simply whether the trial court abused its discretion in exercising control over the trial proceedings. (See § 1044 ["It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters..."]; People v. Engram (2010) 50 Cal.4th 1131, 1146 [trial court has inherent authority to exercise control over all proceedings connected with the litigation before it].)
In People v. Sisneros (2009) 174 Cal.App.4th 142 (Sisneros), the Second District Court of Appeal found no abuse of discretion in a trial court's decision to allow the prosecution to call a witness it expected would refuse to testify and who ultimately refused to be sworn. (Id. at pp. 149-152.) As in this case, the individual was involved in the crime being prosecuted and had no Fifth Amendment privilege to remain silent. (Id. at p. 151.) Citing Lopez, the appellate court reasoned that no person other than the defendant has a right to refuse to be sworn as a witness, and therefore the prosecution was entitled to have the witness take the stand at trial. (Ibid.) Vasquez attempts to distinguish Sisneros on grounds that the refusal to testify in that case served the purpose of corroborating testimony by a gang expert regarding how gang members often refuse to testify against each other. (Id. at p. 152.) The distinction does not change our analysis. Martinez was one of the only percipient witnesses to the crime and relevant inferences could be drawn from his refusal to testify. The trial court did not err by allowing him to be questioned in front of the jury.
Admissibility of Hearsay Evidence
Vasquez assigns error to the trial court's admission of testimony by Louie Oliveira regarding statements allegedly made by Bonner and Martinez two weeks prior to the attempted carjacking. As discussed, Mr. Oliveira claimed to have heard Bonner and Martinez talking about "the white pickup with the Lamborghini doors" and devising a plan that involved "following the pickup around" and "hijack[ing] it." The testimony placed Vasquez in the room during this conversation, which suggested at a minimum that he had advance knowledge of Bonner's and Martinez's criminal intentions.
The witness had already begun to testify about the alleged conversation when a hearsay objection was made and ruled upon as follows:
"Prosecutor: What were they saying about this white truck with the Lamborghini doors?
"Witness: That they were going to try to find out where the gentleman lived.
"Prosecutor: Were they talking about how they were doing that?
"Witness: Following the pickup around.
"Defense Counsel: Your Honor, I'm going to, again, object. I think this is all hearsay anyway.
"Prosecutor: It's a finding of a -- of a conspiracy.
"Trial Court: The objection is going to be overruled in this matter.
"Defense Counsel: Okay.
"Trial Court: The Court does find it relevant."
Based on the above-quoted exchange, Vasquez alleges the prosecution relied on the coconspirator hearsay exception found in Evidence Code section 1223 and the trial court admitted the challenged testimony on that basis. The People accept the premise of this argument, i.e., that the defense objection was refuted and overruled pursuant to Evidence Code section 1223, and argue the statute's foundational requirements were satisfied. In the alternative, the People submit that any error in the admission of Mr. Oliveira's testimony was harmless.
"Hearsay" refers to evidence of an out-of-court statement offered to prove the truth of the matter asserted therein. (Evid. Code, § 1200, subd. (a).) Such evidence is generally inadmissible. (Id., subd. (b).) " 'Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents "independent evidence to establish prima facie the existence of ... [a] conspiracy." ' [Citation.] Pursuant to Evidence Code section 1223, '[o]nce independent proof of a conspiracy has been shown, three preliminary facts must be established: "(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy." ' " (People v. Thompson (2016) 1 Cal.5th 1104, 1108, fn. omitted.) In this case, neither the prosecution nor the trial court addressed the foundational prerequisites for the coconspirator exception to the hearsay rule. Vasquez argues the record did not permit a finding of the required preliminary facts and thus seeks reversal on grounds of improperly admitted evidence.
A trial court's ruling on the admissibility of evidence, including its determination of issues concerning the hearsay rule, is reviewed for abuse of discretion. (Clark, supra, 63 Cal.4th at p. 590; People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) "Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (Goldsmith, supra, 59 Cal.4th at p. 266.) Appellate courts are also bound by the rule that "[i]f a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below." (People v. Brown (2004) 33 Cal.4th 892, 901.)
The parties overlook the admissibility of the challenged testimony for the nonhearsay purpose of demonstrating the effect of the declarants' statements on the listener (i.e., Vasquez), and for hearsay purposes under the state-of-mind exception set forth in Evidence Code section 1250. The first principle involves " ' "evidence of a declarant's statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement." ' " (People v. Livingston (2012) 53 Cal.4th 1145, 1162; see People v. Mendoza (2007) 42 Cal.4th 686, 697 [out-of-court statements properly admitted for nonhearsay purpose of showing defendant's knowledge and motive for committing the charged offense].) Extrajudicial statements are admissible to show they imparted certain information to the listener if such a purpose is relevant to an issue in dispute. (People v. Montes (2014) 58 Cal.4th 809, 863.) Showing that Vasquez had prior knowledge of a plan to carjack the victim was relevant to explaining his conduct, including his presence during commission of the charged offenses, and proving the elements of knowledge and intent under the theory of aiding and abetting. (See Beeman, supra, 35 Cal.3d at p. 560 [aiding and abetting requires knowledge of perpetrator's criminal purpose and intent to commit, encourage, or facilitate the offense].)
Evidence Code section 1250 authorizes the use of extrajudicial statements of "intent [or] plan" to prove the declarant's state of mind "at that time or at any other time when it is itself an issue in the action" and/or if the evidence "is offered to prove or explain acts or conduct of the declarant." (Id., subds. (a)(1), (2); People v. Griffin (2004) 33 Cal.4th 536, 578 [state-of-mind exception permits admission of a hearsay statement as proof of "the declarant's future conduct in accordance with his or her expressed intent"], disapproved of on another point in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) Since the prosecution was trying to establish Vasquez's liability as an aider and abettor, proof of Bonner's and Martinez's intent/plan to commit a carjacking was relevant and admissible under Evidence Code section 1250 to show state of mind and actions in conformity therewith. Thus, the challenged testimony was admissible as hearsay, i.e., to prove the truth of the matters asserted, without proof of an actual conspiracy.
Incidentally, the state-of-mind exception found in Evidence Code section 1250 can be relied upon to admit evidence of statements made by alleged coconspirators even when the statements do not meet the requirements of Evidence Code section 1223 because they predate the formation of the conspiracy. (People v. Morales (1989) 48 Cal.3d 527, 551-552 [disapproved of on another point in People v. Williams (2010) 49 Cal.4th 405, 459]; People v. Han (2000) 78 Cal.App.4th 797, 805-806.)
In People v. Smithey (1999) 20 Cal.4th 936 (Smithey), the California Supreme Court upheld a trial court's hearsay ruling that was based on an invalid theory of admissibility. The defendant's objection had been overruled because the trial court believed the defense " 'opened the door' " to the subject matter of the hearsay during cross-examination. (Id. at p. 972.) On appellate review, the testimony was determined to be admissible under the state-of-mind exception in Evidence Code section 1250, subdivision (a)(1). In rejecting the defendant's argument for reversal, the high court referenced the oft-quoted language of Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329: "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." Applying that principle here, we conclude the admissibility of Louie Oliveira's testimony as hearsay under Evidence Code section 1250 defeats Vasquez's claim regardless of whether or not the testimony could have been introduced pursuant to the coconspirator exception in Evidence Code section 1223.
Vasquez seems to have anticipated our analysis, as his briefing asserts that "[w]hen the prosecution offers hearsay as admissible pursuant to a hearsay exception, the admissibility of the evidence is reviewed according to that particular exception." He cites People v. Reed (1996) 13 Cal.4th 217, 224 (Reed) in support of this proposition. The cited passage from Reed discusses a defendant's hearsay objection and rejects the Attorney General's argument that the evidence was admissible for a nonhearsay purpose. (Ibid.) The California Supreme Court concluded that no such purpose existed, and in a footnote implied that it would be unfair to uphold the ruling on a nonhearsay basis: "Even if a valid theory of nonhearsay relevance existed for the disputed evidence, the evidence here was in fact 'offered' for a hearsay purpose ... Because the prosecution offered the evidence only to prove the truth of the matter stated, defendant had no opportunity to contest nonhearsay relevance or request a limiting instruction." (Id. at fn. 3.)
The evidence at issue in Reed was ultimately deemed admissible pursuant to a statutory hearsay exception. The Reed opinion does not assist Vasquez because the testimony of Louie Oliveira was admissible for both nonhearsay and hearsay purposes. Defense counsel had the opportunity to dispute the trial court's finding of relevance, but did not.
The Reed opinion does not identify the grounds on which the defendant's hearsay objection was refuted and overruled in the trial court, which further weakens Vasquez's contention regarding the scope of our review. (Reed, supra, 13 Cal.4th at pp. 220-222, 224-229.) We note, however, that the California Supreme Court upheld the trial court's ruling for reasons that differed from those of the intermediate appellate court. (Id. at p. 229 ["Having concluded the preliminary hearing excerpts were admissible under Evidence Code section 1291, we need not decide whether the Court of Appeal correctly held them admissible under a nonstatutory exception to the hearsay rule ..."].)
In a related claim, Vasquez argues the trial court had a sua sponte duty to include CALCRIM Nos. 416 and 418 in the jury instructions. CALCRIM No. 416 identifies the elements of a criminal conspiracy and is used when the prosecution relies on the existence of an uncharged conspiracy as a theory of accomplice liability, e.g., as an alternative to aiding and abetting liability. (Judicial Council of Cal., Crim. Jury Instns. (2016) Bench Notes to CALCRIM No. 416, p. 178; see People v. Williams (2015) 61 Cal.4th 1244, 1269 [discussing predecessor instruction, CALJIC No. 6.10.5]; People v. Valdez (2012) 55 Cal.4th 82, 150 [" 'like aiding and abetting, conspiracy (as used here) is itself a theory of liability.' "].) CALCRIM No. 418 explains the foundational requirements for the coconspirator exception to the hearsay rule in Evidence Code section 1223.
Despite one errant use of the term "coconspirator" during closing argument, the prosecution did not attempt to prove derivative liability under a conspiracy theory. The People alleged Vasquez was guilty as either a direct perpetrator or an aider and abettor. Vasquez does not argue otherwise, but contends the jury would have disregarded the testimony of Louie Oliveira had it been instructed on the coconspirator exception to the hearsay rule. He posits that jurors would have concluded the evidence did not show the existence of a conspiracy, and thus "would have realized that the hearsay statements made by Bonner and Martinez around the dining room table could not be considered against appellant for any purpose." Our preceding discussion explains why this argument is flawed. The jury was not only free to consider the challenged testimony for nonhearsay purposes, but also authorized under Evidence Code section 1250 to consider it for the truth of the declarants' statements. (See Clark, supra, 63 Cal.4th at pp. 590-591 [statements that expressly declare a state of mind are admitted as hearsay under Evid. Code, § 1250]; People v. Geier (2007) 41 Cal.4th 555, 587 [" 'The evidence admitted under section 1250 is hearsay; it describes a mental or physical condition, intent, plan, or motive and is received for the truth of the matter stated.' "].) Therefore, the absence of instructions on the law of conspiracy is not cause for reversal.
Error in the Abstract of Judgment
In his opening brief, Vasquez claims the trial court failed to stay his count 2 sentence as required by section 654. The reporter's transcript reflects that punishment for count 2 was stayed, as does the minute order from the sentencing hearing. Only the abstract of judgment fails to note the application of section 654.
"An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) When different portions of the record are in conflict, we credit whichever part that, "because of its origin and nature or otherwise, is entitled to greater credence ... .' " (People v. Smith (1983) 33 Cal.3d 596, 599.) Under the circumstances in this case, we deem the reporter's transcript and the minute order to prevail over the current abstract of judgment. (See People v. Cleveland (2004) 32 Cal.4th 704, 768.) It is unnecessary to order modification of the abstract since a new one will be prepared when Vasquez is resentenced.
DISPOSITION
With regard to count 1, the true finding of special circumstances within the meaning of section 190.2 is reversed and the corresponding LWOP sentence is vacated. The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.