Opinion
E065385
08-15-2018
In re ELLIOT EUGENE WARBURTON on Habeas Corpus.
Elliot Eugen Warburton, in pro. per.; Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF098904 & RIC1514754) OPINION ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Gordon R. Burkhart and Richard A. Erwood, Judges. Petition granted. Elliot Eugen Warburton, in pro. per.; Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
In 2003, a jury convicted petitioner and defendant Elliott Eugene Warburton, along with a codefendant Carl Smith, of the first degree murder of Marcus Plourde, who was shot by a fellow gang member, Fernando Stevenson. The jury also found a principal in the offense personally discharged a firearm, proximately causing death (Pen. Code, former § 12022.53, subds. (d), (e)(1)), and that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, former § 186.22, subd. (b)(1)). Defendant was sentenced to 50 years to life in prison.
Defendant appealed, but his conviction and sentence were affirmed in full, and the California Supreme Court denied review. In 2016, after the superior court denied his petition for writ habeas corpus, defendant filed a petition in this court (case No. E065385) seeking relief from his conviction based on the Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155. Although we summarily denied the petition, the California Supreme Court issued an order to show cause returnable to this Court, why defendant is not entitled to relief pursuant to In re Martinez (2017) 3 Cal.5th 1216 and People v. Chiu. We now grant the petition.
BACKGROUND
We take the background facts from our opinion in the direct appeal. (People v. Warburton (Aug. 30, 2005, E035605) [nonpub. opn.].)
The People filed a request for judicial notice of the record from defendant's direct appeal, People v. Warburton, supra, E035605, and a few weeks later, defendant made a motion to augment the record in order to include the appellate record. On April 12, 2018, we granted the request for judicial notice and denied the augment motion as moot. --------
FACTS
A. The Shooting
Warburton, Fernando Stevenson, and Carl Smith were "founding fathers" or "generals" of a street gang in the City of Corona known as "151 Soljaz." Warburton was also known as "Kapone," Stevenson as "No Good," and Smith as "Jinx."
Marcus Plourde, also known as "Grill," sold marijuana in the City of Corona. Stevenson also sold marijuana in the city. Plourde and Stevenson did not like each other.
Sometime in the first part of August 2001, Plourde and two other individuals approached Stevenson at a public park. Plourde said that because of Stevenson's marijuana sales, Plourde's income from his own sales had decreased. Plourde pointed a gun at Stevenson's face and said Stevenson should "back off."
Ronald Acuna, a friend of Plourde's, lived at a Motel 6 in Corona. Stevenson was seen at the motel frequently, though he did not live there.
On the evening of August 16, 2001, Plourde was at the Motel 6 with Acuna. They encountered Stevenson in the laundry room of the motel. Stevenson said he wanted to buy some marijuana from Plourde, but he did not have the money yet and had to wait until his friends got there. He told Plourde and Acuna to drive around a little bit and come back.
Plourde and Acuna drove around in Acuna's car for about 15 minutes and then parked next to the motel. Stevenson met them in the laundry room and told them to stay in the car while he got the money from his room.
After about five minutes, Stevenson came back to the car and went to the driver's side, where Plourde was sitting. Stevenson said he needed to look for his money. He turned around and appeared to be searching all over his body. Then he turned back around, holding a handgun, and shot Plourde several times. Stevenson ran around the corner and left the scene.
Plourde died of gunshot wounds to the head. The police believed the murder weapon was a .32-caliber firearm, and the bullets removed from Plourde were consistent with .32-caliber bullets. The bullets could have been fired by a revolver.
Police arrested Stevenson in Orange County on August 28, 2001. In his car was an article about the shooting at the Motel 6.
On August 29, 2001, the police searched Warburton's bedroom. Warburton was on probation at the time, and one of the conditions of his probation was that he submit to searches of his person, car, or residence. The search of the bedroom yielded a spent .32-caliber automatic bullet casing. The round could have been fired from either an automatic firearm or a revolver and was consistent with the caliber bullets removed from Plourde's body. There were also live and spent .22-caliber ammunition, spent .25-caliber ammunition, a news article about the murder of Plourde, a stun gun, a phone list for 151 Soljaz, gang writings, and paperwork in Warburton's name.
The same date, the police also searched Warburton's car. Inside the car they found a cap with "151 Soljaz" on it. In the trunk, they found clothing, which Stevenson testified was his.
B. Statements and Testimony of Stevenson and Warburton
The People charged Stevenson, Smith, and Warburton with murdering Plourde. They asserted that Smith and Warburton aided and abetted Stevenson's commission of the homicide. Stevenson was tried first and convicted. Smith and Warburton were tried together before separate juries.
At the time they were arrested, Stevenson and Warburton each made voluntary statements to the police about the events of August 16, 2001. Recordings of the statements were presented at trial. In addition, Stevenson and Warburton testified as witnesses.
1. Stevenson
a. Pretrial interview
Corona police interviewed Stevenson on August 28, 2001. During the interview, Stevenson related these facts, either directly to the interviewing officers or to his sister when the officers were not present but the interview continued to be tape recorded:
On August 16, 2001, Stevenson was in a friend's room at the Motel 6 when Smith, Warburton, and some other individuals came by. Stevenson and the others headed to another room to get marijuana. On the way, they passed Plourde in the laundry room, smoking marijuana with two other individuals. According to Stevenson, Plourde did not get along with Warburton.
After Smith saw Plourde, he commented that certain people did not get along with Plourde. Smith told Warburton they should go "jump" Plourde. However, Stevenson wanted to kill Plourde. He told Smith to tell Plourde he wanted to buy some marijuana from him.
Stevenson also told the others, "[G]o get the heat and I'll pop cuz." Smith told Warburton, "[C]ome on let's go get the heat." Smith and Warburton left for a while. When they left to get the gun, Plourde left to get the marijuana from his house.
When Smith and Warburton returned, they showed Stevenson a revolver. Warburton gave Stevenson the gun. Stevenson and Smith went to one of the motel rooms and smoked some marijuana. Stevenson said he was going to shoot Plourde.
When Plourde returned, Stevenson told him to go sit in his car, and Stevenson would be there in a minute. Stevenson told Smith to go to the car in which he had arrived. Stevenson walked to Plourde's car and pretended to get his money from his shoe. He retrieved the gun and shot Plourde three times. He ran to a parking lot where Smith and Warburton were waiting in Warburton's car, with the door open. The three drove away, with Warburton driving. Stevenson gave the gun to Warburton. Warburton threw the bullets out of the car on the freeway.
b. Trial testimony
Stevenson's trial testimony differed from his pretrial statements in numerous material respects. He testified that Smith and Warburton did not encourage him to kill Plourde, give him a gun, or do anything to help him in Plourde's murder. Instead, he used his own gun to kill Plourde. He asked Smith and Warburton if they had a pistol because his own gun was old and had to be cocked manually before each shot, and he wanted something more reliable. Stevenson denied hearing Smith say to Warburton, "Come on, let's go get the heat."
Stevenson further testified he never told Smith or Warburton he had a gun. He did not want to announce he intended to kill Plourde, because he got the impression Smith and Warburton would try to stop him if they knew. However, Stevenson admitted he told his sister-in-law that Smith had killed Plourde.
Initially, Stevenson was not willing to testify for the People in this case. However, he decided to testify after speaking with a representative of Smith. Stevenson described himself as having a very close relationship with Smith, stating he considered Smith "as a godbrother."
2. Warburton
a. Pretrial interview
Warburton also was interviewed by the police. He first stated that on the night of the shooting, Smith called and asked for a ride to the Motel 6 to pick up his shirts. Warburton picked Smith up at his house, and they drove to the motel. After Smith picked up his shirts, they saw Stevenson. Everyone shook hands, and Smith and Warburton left. Warburton dropped Smith off and went to a friend's house. Later, he went home and went to sleep. Warburton did not see Plourde at the motel that evening.
Later in the interview, Warburton changed his story. He stated he and Smith went to the motel twice. The first time, someone saw Plourde, and there was a discussion to the effect of "we were gonna fight [Plourde] or like someone was wanting to fight [Plourde]." It was decided that Stevenson "was just going to beat [Plourde] up" by himself. Stevenson did not say he was going to kill Plourde.
Warburton and Smith drove back to Smith's house to look for Smith's brother. They could not find him, so they went back to the motel. At the motel, Warburton and Smith met Stevenson in front of the building. Warburton offered Stevenson some gloves he used for boxing, but Stevenson said he did not need them. Either Stevenson or Smith told Warburton to go back to his car, and Smith and Stevenson talked. Then Smith came back to the car. About 15 minutes later, Warburton heard gunshots. Stevenson came running back to the car and got in. Warburton drove away. Smith left separately, in the truck of a friend who also had been at the motel.
Throughout the first part of the interview, Warburton repeatedly said he did not see a gun either before the shooting or afterward, when Stevenson came running back to the car. Later, however, he said he "might've seen a glimpse of the gun" in Stevenson's possession at some unspecified time. Still later, he said he did not see a gun being handed to Stevenson, but he did see Stevenson with the gun after he came running to Warburton's car. Warburton also said that when he and Stevenson were driving away from the motel after the shooting, Stevenson gave him the gun and told him to unload it. Then Stevenson threw the shells out the window.
b. Trial testimony
Warburton's trial testimony was generally consistent with the final story he gave the police, except for a few details. At trial, Warburton said that when he picked Smith up to take him to the motel, two of Warburton's friends, Tim Carter and Colby Williams, were with him in the car. When they went back to Smith's house after the first trip to the motel, they picked up Carter's truck so he could leave separately later on. The four then drove back to the motel in two separate vehicles.
Warburton also testified at trial that he, not Stevenson, threw the bullet shells out the window.
Warburton testified he changed his story to the police because they told him, basically, that if he didn't tell them what they wanted to hear, he was going to jail.
DISCUSSION
Defendant argues his conviction for first degree murder must be reversed because the trial court erroneously instructed the jurors that they could find petitioner guilty of first degree murder if it determined that the shooting death of the victim was the natural and probable consequence of aiding and abetting the target offense of battery, without finding that defendant deliberated and premeditated the murder. We agree.
A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime (target offense), but also of any other crime the perpetrator actually commits (nontarget offense) that is a natural and probable consequence of the intended crime. (People v. Medina (2009) 46 Cal.4th 913, 920; see People v. Chiu, supra, 59 Cal.4th at p. 161; People v. Prettyman (1996) 14 Cal.4th 248, 260.) Thus, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
Liability under the natural and probable consequences doctrine "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." (People v. Medina, supra, 46 Cal.4th at p. 920, citing People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)
To be "reasonably foreseeable," the consequence need not have been a strong probability; a possible consequence that might reasonably have been contemplated is enough. (People v. Medina, supra, 46 Cal.4th at p. 920, citing People v. Nguyen, supra, 21 Cal.App.4th at p. 535.) A consequence that is reasonably foreseeable is a natural and probable consequence under this doctrine. (People v. Smith (2014) 60 Cal.4th 603, 611.) However, the application of the natural and probable consequences doctrine does not depend on the foreseeability of every element of the nontarget offense. (People v. Chiu, supra, 59 Cal.4th at p. 165.)
Ample case law supports the notion that a shooting may be found by the jury to be a natural and probable consequence of a battery (see People v. Olguin (1994) 31 Cal.App.4th 1355, 1376), or an aggravated assault (People v. Ayala (2010) 181 Cal.App.4th 1440, 1450), or a gang confrontation (People v. Gonzales (2001) 87 Cal.App.4th 1, 10). This is a factual determination to be made by the jury. (Olguin, at p. 1376, citing People v. Godinez (1992) 2 Cal.App.4th 492, 499.) The question here is one of degree.
In the context of murder, the natural and probable consequences doctrine serves a legitimate public policy of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in homicide, by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder. (People v. Chiu, supra, 59 Cal.4th at p. 165, citing People v. Knoller (2007) 41 Cal.4th 139, 143, 151-152.) However, that public policy concern "loses its force in the context of a defendant's liability as an aider and abettor of a first degree premeditated murder." (Chiu, at p. 166.)
Thus, the Supreme Court held that punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine (Chiu, supra, 59 Cal.4th at p. 166), unless he or she knowingly and intentionally assists a confederate to kill someone (Id. at pp. 166-167, citing People v. McCoy, supra, 25 Cal.4th at pp. 1117-1118). But a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine. (Chiu, at pp. 166-167.)
Regarding instructions on aider/abettor liability, when a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. (Chiu, supra, 59 Cal.4th at p. 167.) An instruction on an invalid theory may be found harmless when " 'other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary' " under a legally valid theory. (In re Martinez, supra, 3 Cal.5th at p.1226, citing People v. Chun (2009) 45 Cal.4th 1172, 1205.)
The facts of this case are similar to those of Martinez. There, the defendant was convicted of first degree murder on an aiding and abetting theory based on a shooting committed by a fellow gang member while defendant was engaged in a fistfight with a rival gang member. There, the court instructed the jury that Martinez could be found guilty of murder under the natural and probable consequences doctrine if the jury determined that he was guilty of assault and/or battery; that during the commission of the assault and/or battery, a coparticipant committed the crime of murder; and that a reasonable person in the defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of the assault and/or battery. (Martinez, supra, 3 Cal.5th at pp. 1219-1220.) On review in habeas corpus proceedings, the Supreme Court applied Chiu, and granted relief because it could not be determined whether the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder. (Id. at p. 1227.)
The same is true in the instant case. The People introduced multifarious statements of Stevenson, the actual perpetrator, as well as pretrial statements of defendant in addition to defendant's testimony at trial. If the jury believed Stevenson's pretrial statements, that he told Smith and Warburton to go get him a gun with which to shoot Plourde, then defendant could be found guilty of first degree murder as a direct aider and abettor of premeditated murder.
However, the People presented an alternate theory of guilt, based on the aiding/abetting doctrine, to address the scenario that defendant did not know Stevenson intended to kill Plourde, and believed that Stevenson only intended to beat up Plourde. The trial court instructed the jury that it could find defendant guilty of first degree murder as an aider/abettor based on a target offense of battery, if the jury found that murder was the natural and probable consequence of that target offense. Thus, if the jury believed Stevenson's trial testimony, as well as defendant's pretrial statements and trial testimony, the verdict of first degree murder would have been based on the improper conclusion that defendant aided and abetted the target offense of battery. Chiu error has been established.
Turning to prejudice, we cannot say, on the record before us, whether the jury based its verdict solely on the legally valid theory that defendant directly aided and abetted the first degree murder by Stevenson. For this reason, the Chiu error was prejudicial and the conviction of first degree murder must be vacated. We remand the matter to the superior court where the prosecution may elect to retry defendant. If the prosecution elects not to retry the defendant, the trial court shall enter a judgment reflecting a conviction of second degree murder and resentence defendant accordingly.
DISPOSITION
The petition for writ of habeas corpus is granted and the conviction is vacated. The matter is remanded to the superior court where the People may elect to retry defendant on charges of first degree murder. If the People elect not to retry defendant, the trial court shall enter judgment reflecting a conviction of second degree murder and resentence defendant accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. CODRINGTON
J.