Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC465927
RUSHING, P.J.
Defendant Francisco Vega appeals a judgment entered following a jury trial during which he was convicted of first degree murder with special circumstances. (Pen. Code, §§ 187, 190.2, subd. (a)(15).) On appeal, defendant asserts the trial court erred in instructing the jury regarding the intent required for aiding and abetting, and in answering the jury’s questions during deliberations.
All further statutory references are the Penal Code.
Statement of the Facts and Case
This case arrises from the murder of David Owens. Defendant’s friend, Joshua Joseph, killed Owens, because Owens had sexual relations with his stepmother, Nancy Polizzi, with whom Joseph also was having sexual relations.
Owens and Joseph became acquainted when they were both serving time in Santa Clara County Juvenile Hall. Later, when Joseph was serving time in state prison, Owens sent letters to Nancy Polizzi’s house, addressed to Joseph. Polizzi read the letters before forwarding them to Joseph in prison. Eventually, Polizzi began to communicate with Owens on her own. The two wrote each other for about one year before Owens was released in April 2004. One month later Joseph was released. Owens arranged to meet with Polizzi, and the two had sexual intercourse.
During the same period of time, Polizzi was also communicating with Joseph while he was in prison, and the two planned to have sexual intercourse when he was released. In May 2004, the night Joseph was released from prison, he had sexual intercourse with Polizzi, and continued to have intercourse with her over the next month and a half.
While Joseph and Polizzi were involved in their romantic relationship, Joseph asked Polizzi if she had sex with anyone else. When he learned Polizzi had sex with Owens, Joseph said: “[Mr. Owens] is dead.”
Defendant’s connection to Owens was through his relationship with Joseph. Defendant became friends with Joseph in 2002, shortly after defendant had been released from the California Youth Authority, and Joseph had been released from prison. In 2003, defendant was returned to the California Youth Authority, and Joseph went back to prison.
Defendant was released from the California Youth Authority in April 2004. At the time, defendant went to live in Fresno, and Joseph, who was released from prison one month later in May 2004, lived in Hollister. Joseph went to Fresno to see defendant, and the two talked about Joseph’s construction job and side business of selling drugs. Joseph told defendant he needed defendant’s help with the drug business, because he needed someone who was not on adult parole, like himself. Since defendant was on Youth Authority parole, defendant could take the blame for the drug business if the two were caught. At the time, Joseph suggested defendant come to Hollister to stay with him.
Defendant moved to Hollister to stay with Joseph. While defendant was living there, Joseph told defendant that Owens had “fucked up.” Joseph told defendant: “I trusted him enough to give him my address.... [H]e back-stabbed me; he came over to my house, supposedly to drop off letters to me, and he was sleeping with [Polizzi].” Joseph continued: “Well, he slapped me in the face, he did me dirty when I opened up my door to him, and I wanna get him.” Joseph told defendant Owens was going to pay for what he did, and that he had a gun for Owens. Joseph made it clear to defendant that he was going to kill Owens. According to Jospeh, there are codes that Northerners went by, and one says that a “homeboy” does not disrespect another’s family.
Joseph told defendant they would kill Owens over the weekend of August 7, 2004, when Joseph and defendant were going to stay at Joseph’s aunt’s house in Campbell. The two drove to Campbell on Saturday. On the way there, defendant test fired the gun in some fields, and put on latex gloves before shooting the gun. They drove around the area on Saturday night, and Joseph pointed out Owen’s house to defendant. Defendant had the gun under his seat in the car. The two discussed different plans to carry out the murder, including one that had defendant knocking on Owens’s door, saying he was Owens’s friend, and asking that Owens come out of the house so Joseph could shoot Owens.
On Sunday August 8, defendant and Joseph got up late, went to eat, and then went to a mall where Joseph bought defendant some shoes. The two planned to wear old shoes, and Joseph was going to wear defendant’s pants and shirt when they went to kill Owens. They planned to change their clothes after killing Owens.
Joseph and defendant left Joseph’s aunt house after dark on Sunday night and went to Owens’s house. Once there, Joseph and defendant drove around and parked on the side of the house twice, never parking in front of the house. Joseph and defendant walked from the car and around the house. Joseph had the gun in his pocket. The two then walked back and sat in the car. Joseph told defendant he was going to do it. They got out of the car, and walked around the house again. Joseph went to the front of the house, and defendant heard more than three shots fired in a row. Joseph started running back to the car and handed the gun to defendant. Joseph was excited and was saying, “I got him, I’m sure.”
Joseph drove defendant away from Owens’s house. They began throwing bullets, gloves and other small items out the window. Joseph told defendant to throw the gun away, so defendant threw the gun, along with a cloth they had brought to cover the gun into a trash can. At the time, Joseph was wearing defendant’s clothes and wanted to throw them away too, but defendant told Joseph they should burn the clothes. They drove back to Hollister and burned the clothes in the back of a church.
The next day, Joseph went to work, and at Joseph’s direction, defendant washed Joseph’s car. Defendant made sure they had not left anything in the car from the night before.
When asked about Owens, defendant said: “it was just more like blank, like fuck” “lookit, because let’s say he broke the bond, and let’s say he did have sex with [Joseph’s] mom; I think the thing that he’s in trouble.” Defendant also said he never thought about calling the police about Joseph, because it was not his situation. Defendant said that he did not receive anything from Joseph for going with him to kill Owens, stating: “I was just, I was there with him, I mean, it was just a regular job, I mean, like a little job, to take a trip....”
In May 2007, defendant was charged with first degree murder with the special circumstance of lying in wait under a theory of aiding and abetting. The information also alleged defendant was armed with a handgun (§ 12022, subd. (a)(1)). Following a jury trial, defendant was convicted as charged, and was sentenced to life without the possibility of parole, plus one year for the gun enhancement. Defendant filed a timely notice of appeal.
Discussion
Defendant asserts on appeal the trial court erred in refusing his request for certain instructions regarding the intent required for aiding and abetting, and in not properly responding to the jury’s questions submitted to the court during deliberations. Defendant asserts the trial court’s errors violated his rights to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution.
In reviewing a purportedly ambiguous or potentially confusing instruction for constitutional error, we determine “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72.) In making this assessment, we do not review the instruction in isolation; rather we consider it “in the context of the instructions as a whole and the trial record.” (Id. at p. 72.)
Instructions
The trial court instructed the jury regarding aiding and abetting with CALCRIM Nos. 400 and 401. Specifically, the court instructed pursuant to CALCRIM No. 400 that, “[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” The court instructed the jury pursuant to CALCRIM No. 401 on the elements of aiding and abetting, as follows: “To prove that the defendant is guilty of the crime based on aiding and abetting that crime, the People must prove that: [¶] Number one, that the perpetrator committed the crime; [¶] Number two, that the defendant knew that the perpetrator intended to commit the crime; [¶] Number three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] and[, ] [¶] Number four, the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that a defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of the crime or fails to prevent the crime does not, by itself, make him or her an aider or abettor.” (Italics added.)
Defendant argues on appeal that the trial court’s instructions pursuant to CALCRIM No. 401 were deficient, because an alleged aider-and-abettor must be shown to have held the identical specific intent as the direct perpetrator, in this case, first degree murder.
In addition, defendant asserts the court erred in refusing his two requested special instruction related to intent for aiding and abetting. The first instruction related to presence at the scene of the crime, and stated: “Mere presence at the scene of the crime and intimate knowledge of the offense simply made [sic] a person an eyewitness and do not, without more, permit conviction of the person as an aider and abettor of the crime.”
The second requested special instruction related to the concept of “shared intent” and stated: “A defendant may not be found guilty as an aider and abettor unless you find the defendant: [¶] Number one, actually knew and shared the full extent of the alleged perpetrator’s criminal intent; [¶] And [¶] Number two, actually promoted, encouraged, or assisted the alleged perpetrator; [¶] And [¶] Number three, did so with the intent and purpose of advancing the alleged perpetrator’s successful commission of the alleged offense. [¶] It is not sufficient if a defendant simply gives assistance with the knowledge of the perpetrator’s purpose. Merely giving assistance without sharing the perpetrator’s purpose of intent establishes liability only as an accessory, nor as a principal.”
In refusing defendant’s requested special instructions, the court noted that intent for an aider and abettor is adequately addressed in numerous other standard instructions in this case, including CALCRIM Nos. 400, 520, 521, 702, 704 and 705. In addition, the court noted that the theory of defendant’s criminal liability at trial was that he intended to kill Owens, and there was no substantial evidence presented at trial to the contrary. Therefore, defendant’s special instruction regarding giving assistance to the perpetrator establishing liability as an accessory was not warranted.
The trial court was correct in refusing the requested special instructions here, because CALCRIM No. 401 correctly states the law as set forth in People v. Beeman (1984) 35 Cal.3d 547, 560, which states “an aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” Specifically, No. 401 provides that a defendant aids and abets a crime “if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission if that crime.” There is no defect in this instruction, because it clearly states that the aider and abettor must have the specific intent to aid, et cetera, in the commission of the particular crime involved. (See People v. Stallworth (2008) 164 Cal.App.4th 1079, 1103 [rejecting the argument that CALCRIM No. 401 is constitutionally defective because it does not explicitly state that mere presence or knowledge was insufficient to establish aiding and abetting].)
Defendant cites both People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza) and People v. Lee (2003) 31 Cal.4th 613 (Lee), for the proposition that in specific intent crimes such as first degree murder, in order to be guilty as an aider and abettor, a defendant must have the same specific intent to kill as the perpetrator. However, neither Mendoza nor Lee actually stands for the proposition that the same specific intent as the perpetrator is required of an aider and abettor. Indeed, in Mendoza, the court considered the effect of voluntary intoxication on the existence of the mental state required for aiding and abetting, stating: “[t]he mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged.... An aider and abettor, on the other hand, must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or encouraging or facilitating commission of, the offense.’ [Citation.] ‘The jury must find ‘the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offenses....’ ” (Mendoza, supra, 18 Cal.4th at pp. 1122-1123, first italics added.)
Like Mendoza, Lee also provides little support for defendant’s position that in order to be guilty as an aider and abettor, the defendant must harbor identical specific intent as the perpetrator. In Lee, in reference to the required intent for aiding and abetting, the court stated: “the person must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s commission of the crime.” (Lee, supra, 31 Cal.4th at p. 624.) The Lee court’s rational approved the formulation of intent necessary to establish aiding and abetting as stated in People v. Beeman, supra, 35 Cal.3d at page 560, and incorporated into CALCRIM No. 401.
We find the court correctly instructed the jury on the issue of intent necessary for aiding and abetting, and did not err in refusing defendant’s specific special instructions. The standard instructions correctly stated the law as provided in People v. Beeman, supra, 35 Cal.3d 547.
Jury Questions
Defendant asserts that even if trial court properly instructed the jury on the issue of aiding and abetting, the court’s responses to the jury’s questions relating to specific intent were inadequate.
During deliberations in this case, the jury sent a note to the court stating that it was unsure of the meaning of CALCRIM No. 251, and asked the court for a definition of “knowing the consequences” used in CALCRIM No. 728, for the special circumstances of lying in wait allegation.
CALCRIM No. 251 states the following as given by the court: “The crime charged in this case requires proof of the union, or the joint operation, of an act and a wrongful intent or mental state. [¶] For you to find a person guilty of the crime of murder as alleged in Count One, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and mental state. The act and the specific intent and mental state required are explained in the instruction which will follow.” The trial court’s written responses to the jury’s questions were as follows: “3. Instruction 251 is a general instruction that applies to all crimes. It introduces the concept that all crimes require a combination of some kind of conduct or act and some kind of intent or mental state of mind of the perpetrator. The specific acts and intent or mental states required in this case are set out in Instruction #520 for the charge of Murder in the Count One, and Instruction #728 for the ‘Lying in wait” allegation. [¶] 4. The term “knowing the consequences” in Instruction #728 is not specifically defined, and therefore should be applied using its ordinary, everyday meaning. It is up to you to determine what that meaning is.”
Following these answers, the jury sent the trial court the following additional question: “If murder in the first degree occurs, is an aider and abettor automatically guilty of first degree murder?”
The court provided the following written response the jury’s question: “The answer to this question would be ‘Yes, ’ if the following assumptions are true: [¶] 1. You have unanimously found that a Murder has occurred (Instruction #520), and [¶] 2. You have unanimously found that the Murder was deliberate and premeditated and therefore Murder in the first degree (Instruction #521) and, [¶] 3. You have unanimously found that the defendant is an ‘aider and abettor’ as defined. (Instruction 400, 401)”
The duty of a trial judge to answer the jury’s questions during deliberations is set forth in section 1138 provides in relevant part: “After the jury have retired for deliberation, ... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given....”
Our Supreme Court discussed the trial court’s duty under section 1138 in People v. Beardslee (1991) 53 Cal.3d 68, 97, stating: “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]”
The court in People v. Moore (1996) 44 Cal.App.4th 1323, addressed this point further, and explained that the trial court is not required to elaborate “on the standard instructions in every instance. When the original instructions are full and complete, the trial court has discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury’s inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice. [Citation.]” (Moore, supra, 44 Cal.App.4th at p. 1331 citing People v. Beardslee, supra, 53 Cal.3d at p. 97.)
Here, the record shows the court considered the jury’s questions, and properly answered them, fulfilling its duty under section 1138. The jury’s first question related to its confusion over the meaning of CALCRIM No. 251, demonstrating its lack of understanding of the phrase “union or joint operation.” The court considered the question, and helped the jury better understand the legal principle by explaining that all “crimes require a combination of some kind of conduct or act and some kind of intent or mental state of mind of the perpetrator.” The court’s answer was entirely proper, and thoroughly explained the legal principle of “joint operation, ” in CALCRIM No. 251.
The court answered the second part of the jury’s question regarding the meaning of “knowing the consequences” under CALCRIM No. 728 equally well. CACRIM No. 728 provides, in relevant part: “The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.” (Emphasis added.) The court’s response was that “knowing the consequences” must be considered using “its ordinary, everyday meaning.” The court then told the jury it was up to them to determine what that meaning was. This response is correct under the law, as there is no specific, legal definition of the phrase “knowing the consequences.” In addition, the court’s answer was consistent with CALCRIM No. 200, which instructs the jury that when words or phrases are not specifically defined, the jury should apply an ordinary, everyday meaning to them.
Finally, in the last question from the jury regarding whether an aider and abettor is automatically guilty of first degree murder, the court properly replied in the affirmative, but only if the jury first found that a murder occurred, that the murder was deliberate and premeditated, and that defendant was an “aider and abettor as defined in CALCRIM Nos. 400 and 401. This answer was a proper, correct statement of the law.
The record shows that the court considered the jury’s questions, and how to assist them in their inquiries. Moreover, the court’s answers were proper statements of the law, and did not diverge from the standard jury instructions in this case. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) The court did not err in answering the jury’s questions, and adequately fulfilled its duty under section 1138.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.