Opinion
A157039
09-27-2019
In re LA'NARE WISE, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 148769C)
La'Nare Wise petitions for a writ of habeas corpus on the basis that he was improperly convicted of first-degree murder with special circumstances under the natural and probable consequences theory of liability without any finding that he harbored an intent to kill. We conclude that, although instructions to the jury on the natural and probable consequences of a non-homicide target felony did not specify the requisite mental state for murder, and the special circumstance of discharge of a firearm from a motor vehicle with the intent to inflict death contained a latent ambiguity, the record demonstrates no reasonable probability that Wise was convicted of first degree murder without a jury determination that he harbored an intent to kill. The petition for writ of habeas corpus is denied, and the order to show cause is discharged.
LEGAL BACKGROUND
In December 2007, this court affirmed Wise's conviction for one count of first-degree murder and three counts of premeditated attempted murder. (People v. Wise (Dec. 21, 2007, A115148) [non-pub. opn.] (Wise I).) In doing so, we relied in part on People v. Coffman (2004) 34 Cal.4th 1, 106-108, for the proposition that "under the natural and probable consequences doctrine, 'an aider and abettor "is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets." '. . . 'To the extent [the defendant] contends that imposition of liability for murder on an aider and abettor [theory] under this doctrine violates due process by substituting a presumption for, or otherwise excusing, proof of the required mental state, [he or] she is mistaken.' " (Wise I, supra, A115148 at p. 11.)
In 2014 our Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155 (Chiu). In relevant part, Chiu held that "a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Id. at p. 167.) Instead, such a conviction may be based on direct principles of aiding and abetting, and "the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission." (Id. at pp. 166-167.) In In re Martinez (2017) 3 Cal.5th 1216 (Martinez), the court applied the standard of review for harmless error identified in Chiu to the collateral review of a judgment of conviction. "Chiu error requires reversal unless the reviewing court concludes beyond a reasonable doubt that the jury actually relied on a legally valid theory in convicting the defendant of first degree murder." (Id. at p. 1218.) Most recently, the court made clear that in applying this standard of harmless error, "The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (People v. Aldemat (2019) 8 Cal.5th 1)
In April 2016, Wise petitioned the Alameda Superior Court for habeas corpus relief asserting Chiu error. The petition was denied. His petition filed in this court was denied in January 2017. In February 2017, he petitioned the Supreme Court. After receiving informal opposition, the Court issued an order to show cause returnable to this court directing the respondent to demonstrate why Wise "is not entitled to relief pursuant to In re Martinez (2017) 3 Cal.5th 1216 and People v. Chiu (2014) 59 Cal.4th 155. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 180-182 [Letner].)"
FACTUAL BACKGROUND
The following factual summary is taken verbatim from our opinion in Wise's appeal filed December 21, 2007:
"At approximately 1:30 a.m. on February 1, 2004, eighteen-year old Siara Spriggs drove her three friends, Stephanie Franklin, Lendell Waters and George Carnegie to the Giant Burger at 81st Avenue and International Boulevard in Oakland. Waters got out of the car to order food. He saw a girl he knew, Larona Jones, and chatted with her for a few minutes. Jones was the girlfriend of co-defendant Lamar Williams. Williams was angry that Jones was speaking to Waters, and told her not to talk to anyone else while she was with him. Williams felt Waters disrespected him by grinning at this, but when Waters offered apologies Williams refused to shake hands and called Waters a 'Bitch Ass Nigger.'
"Williams phoned defendant and told him to come to Giant Burger because he 'had just gotten into it with someone.' Williams also told defendant to 'Bring the gauge.' Defendant arrived at Giant Burger with a pump action shotgun in a vehicle driven by co-defendant Jideofor Ajaelo. Defendant rode in the front passenger seat. Mike Anderson and Alexander Gomez were in the back seat. Williams climbed into the right rear passenger seat. As they proceeded down 81st Avenue, Williams spotted Spriggs' vehicle and said, "There they go right there." The first shots were fired from Ajaelo's vehicle on 81st Avenue near San Leandro Boulevard, and eleven 9mm casings were recovered from that location. Ajaelo pulled alongside Spriggs' car along San Leandro Boulevard and more shots were fired. Four more 9mm shell casings were found on San Leandro Boulevard. At one point, Williams told defendant to shoot out the tires on Spriggs' car. Defendant complied by firing the shotgun once at the rear tire on Spriggs' car. The shot missed the tire and hit the ground. Defendant tried to fire again but the shotgun jammed and would not fire a second time. Spriggs turned onto 75th Avenue and Ajaelo's car drove straight on. Spriggs stopped the car and tried to run, but fell because she had been shot in the leg. Stephanie Franklin was found dead in the front passenger seat, killed by a single bullet to the back which lodged in her heart. Waters was shot in the arm and leg and Carnegie escaped injury. All casings recovered were fired from the same weapon.
"An information filed on December 3, 2004, charged defendant and co-defendants Williams and Ajaelo with the murder of Stephanie Franklin (Penal Code, § 187, subd. (a)), with the special circumstances of murder perpetrated by shooting a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and attempted murder (§§ 187(a)/664) of Spriggs, Waters and Carnegie (3 separate counts). Defendant was tried separately from the other defendants. Jury trial began on May 30, 2006. On June 22, 2006, the jury found defendant guilty of first degree murder with special circumstances and three counts of premeditated attempted murder and found true the firearms allegations. The trial court sentenced defendant to a total term of 105 years-to-life without the possibility of parole." (Wise I, supra, A115148 at pp. 1-3.)
DISCUSSION
1. The Instructional Error on Possible Vicarious Liability for First Degree Murder was Harmless Beyond a Reasonable Doubt.
There is no question that the instruction given to Wise's jury on liability for the natural and probable consequences of a criminal act contained the same defect that was identified in Chiu. The instruction in isolation could be read to permit the jury to convict Wise of first degree murder simply based upon his participation in the target crime of shooting from a vehicle. (See Chiu, supra, 59 Cal.4th at pp. 160, 166-167.) There is also no doubt that Wise is correct when he argues that the instruction on the special circumstance allegation, a former version of CALJIC 8.80, could allow the jury to convict him as an aider and abettor without concluding he intended the victim be killed. The instruction has a latent ambiguity. "The jury was told that if it determined one of the defendants was the actual killer, intent to kill was not required, and that if it could not decide whether one of the defendants was the actual killer or an aider and abettor, it must find intent to kill in order to make a true finding. The jury, however, was not informed what was required in the event the jury determined that a particular defendant was an aider and abettor. [Fn. Omitted.] The omission of this third alternative made the instruction ambiguous." (Letner, supra, 50 Cal.4th 99 at p. 181.) But neither of these deficiencies in the instructions had any effect on Wise's verdict.
The jury here was presented with three theories of murder: Murder based on aiding and abetting an unlawful killing with malice aforethought; aiding and abetting a murder perpetrated by means of discharging a firearm from a motor vehicle with the intent to kill; and murder arising as a natural and probable consequence of aiding and abetting the crime of shooting from a vehicle. The jury was also instructed on second degree murder, voluntary manslaughter, and shooting from a moving vehicle.
The instructions used in this case for aiding and abetting murder with malice aforethought required that to determine the murder was in the first degree, the jury had to conclude that "the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill." The instruction for murder by means of discharging a firearm from a motor vehicle specified the crime as first degree murder and required that "[t]he defendant specifically intended to kill a human being." But the instruction for murder as a natural and probable consequence of shooting from a motor vehicle neither required an intent to kill nor specified a degree of murder.
During deliberations, the jury had a series of questions. The jury's first question asked the court to "clarify and define" the instruction on Principals—Liability for Natural and Probable Consequences. The court replied by asking the jury, "What do you mean by 'clarify and define the above mentioned cite of the law'?" As we said in our decision on appeal, "Quite reasonably, the trial court sought clarification from the jury but none was forthcoming." (Wise I, supra, A115148 at p. 5.)
The jury's second question asked the court to identify all the elements necessary for murder committed by discharging a firearm from a motor vehicle. The court directed the jury specifically to the instruction given for that offense, CALJIC 8.25.1. That instruction specifically focused on Wise's intent to commit murder. It said: "Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree. The essential elements of drive by murder are: [¶] 1. The defendant committed the crime of murder; [¶] 2. The defendant perpetrated the murder by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle; and [¶] 3. The defendant specifically intended to kill a human being."
The jury next asked the court to specify the "elements that differentiate first degree and second degree murder." The court directed the jury to the series of instructions on homicide. The instruction on liability for the natural and probable consequences of a target crime was not among the instructions specified in the court's reply to this third question.
The jury next asked the court to reconvene to explain the charges against Wise because many jurors were "very confused and unclear about the charges." In response, on the morning of June 22, 2006, the court re-convened and read to the jury the counts alleged against Wise in the information. The court also provided the jury a summary of the charges against Wise along with the lesser included offenses for each count. Neither the charges against Wise from the information, nor the summary prepared by the court, describes possible murder liability due to the natural and probable consequence of shooting from a vehicle, nor as an aider and abettor.
The jury had two more questions before returning its verdict. Each of them focused on the verdict form for first degree murder. The first question asked if in order to find Wise guilty of murder, the jury also had to find true the special circumstance allegation and each of three arming allegations. The court replied, "The murder charge is independent and distinct from the clauses. You can find him guilty of first degree murder and find that none, some or all of the clauses are true or not." The jury's final question asked if it was necessary to agree unanimously on the special circumstance allegation and each of the firearm allegations in order to support the murder charge. The court answered, "No—again the murder charge stands alone, and the clauses stand alone. One is not dependent on the other. However, any decision on the murder charge and the clauses must be unanimous."
The jury returned its verdict of first degree murder the afternoon of June 22 on the third day of deliberations.
Our review of the record leads us to conclude beyond a reasonable doubt that the jury found Wise guilty of first degree murder because he harbored a clear intent to kill as a result of deliberation and premeditation. While the jury initially asked a question about natural and probable consequences liability, its deliberation obviously moved beyond vicarious liability. The jury's third question asked the court to provide guidance on the distinction between first and second degree murder. The court's reply directed the jury to the series of instructions concerning homicide, but those instructions did not include liability based upon the natural and probable consequences of an underlying felony or Wise's potential liability as an aider and abettor. The specified instructions stated that in order to find Wise guilty of first degree murder, the jury had to "find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation." (Italics added.) If the jury concluded that Wise acted with malice aforethought, but the evidence did not prove deliberation and premeditation, the murder was of the second degree.
The evidence also fully supports the verdict and was argued by the prosecution to demonstrate that Wise had the specific intent to commit murder. Unlike Martinez, Wise was tried alone. His case was severed from the other defendants, and the gravamen of the prosecution's argument was that Wise harbored an intent to kill. He brought the shotgun to Giant Burger as Williams asked him to and fired it toward the victims after Williams had already fired 11 rounds from his 9 millimeter. The prosecutor argued this conduct clearly demonstrated that Wise "knows and everyone knows after those eleven shots there's an intent to kill. And he doesn't pick up the shotgun until after that. And when he picks up that shotgun, points it out the car and fires, it's game over. That's it. He's on the hook for first-degree murder. Then he admits to you that he pulled the trigger again to see if it would fire again." By contrast, when the prosecutor described possible liability under the natural and probable consequences theory, the prosecutor referred to it as a "far fetched scenario where there is no intent to kill by anyone." He told the jury to apply the natural and probable consequences analysis "if you give him the benefit of the doubt beyond all benefits of doubt."
The defense also argued it was the prosecution's burden prove that, as an accomplice, Wise had to share in Williams's specific intent to kill. The defense argued this was not a case of murder because Wise had no idea what Williams intended to do. Wise argued that he did not fire the shotgun and only said he did because he was coerced by the police to say so. Alternatively, he argued that he fired in imperfect and actual self-defense. He thought the passengers in the other vehicle were armed, and he was afraid he would be shot by Williams if he did not fire the shotgun when he was told to do so.
The defense concluded that it was the prosecution's burden "to show that Lanare Wise had that specific intent to kill, or, if not, that he had the specific intent to join in to Lamar Williams' murderous plan, knowing the full extent of it. [¶] . . . [¶] I want you to determine that Lanare Wise does have a different liability, that he isn't guilty of all those counts that require specific intent to kill, the uses, and everything that Lamar Williams is guilty of. I want you to do that because, in fact, he didn't kill anybody, he didn't shoot anybody, he didn't injure anybody, he didn't even damage the car. And I want you to do that because he didn't know the full extent of what Lamar Williams' criminal purpose was and he did nothing to aid or encourage that purpose of killing Lendell Waters and tragically killing Stephanie Franklin. He didn't really know. He didn't really help, knowing what the criminal purpose was, and he didn't really want that same outcome. [¶] And I believe the evidence shows that even pulling the trigger toward the other car was done in a reasonable apprehension of self-defense or possibly in response to threats from Lamar or the fact that he thought Lamar might shoot him. And his gun didn't really work based on everything I've told you."
In sum, on this record the notion that Wise shot at Spriggs's car without fully intending to kill or, at a minimum, assist Williams's endeavor to do so, stretches credulity beyond its breaking point. Moreover, the progression of questions from the jury and the responsive instructions from the court indicate the jurors moved their focus from natural and probable consequences of a lesser felony to a theory of liability for murder predicated on Wise's intent to kill. After examining the entire cause and considering all the relevant evidence and circumstances, we conclude the error in instructing the jury on the reasonable and probable consequences theory of vicarious liability for murder was harmless beyond a reasonable doubt.
2. The Guilty Verdicts for Attempted Murder Were Not Affected by Chiu Error.
Finally, Wise argues that the guilty verdicts on counts two through four for attempted murder must be reversed because the instructions did not require the jury to conclude that a premeditated murder was the natural and probable consequence of the target crime. Because we have concluded that the record demonstrates no reasonable probability that Wise was convicted of first degree murder without a jury determination that he harbored an intent to kill, there is no merit to the argument that Wise was improperly found guilty of attempted murder on a natural and probable consequences theory. Moreover, the verdicts on their face recite that "defendant did unlawfully, and with malice aforethought, attempt to murder . . . a human being, . . . [¶] [and] [w]e, the jury, further find that the aforesaid attempted murder was . . . committed willfully, deliberately, and with premeditation."
Neither would Chiu compel a different result even if we had not concluded the error was harmless. In People v. Favor (2012) 54 Cal.4th 868, 880 (Favor) the court held: "Under the natural and probable consequences doctrine, there is no requirement that an aider and abettor reasonably foresee an attempted premeditated murder as the natural and probable consequence of the target offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of the crime aided and abetted, and the attempted murder itself was committed willfully, deliberately and with premeditation."
In discussing the policy reasons to require a finding of premeditation by each defendant guilty of first-degree murder under the natural and probable consequences doctrine, the Chiu court distinguished cases of attempted murder. (Chiu, supra, 59 Cal.4th at p. 163 [discussing Favor].) The determination of premeditation for an attempted murder involves a statutory penalty provision and does not create a greater degree of attempted murder. Moreover, a defendant guilty of premeditated attempted murder is facing a life sentence considerably less severe than either first or second degree murder and is eligible for parole consideration after serving seven years. (Ibid.)
After distinguishing cases of attempted murder, the Chiu court expressly held "that a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at p. 167.) Chiu does not address a verdict of vicarious liability for attempted murder. Favor remains the law, whether or not the policy reasons supporting its rule remain viable after Chiu. (But see, People v. Mejia (Sep. 18, 2019, G052967) ___ Cal.App.5th ___ (2019 WL 4466845).
DISPOSITION
The petition for writ of habeas corpus is denied, and the order to show cause is discharged.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Wick, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------