Opinion
B225459
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. RONY EDUARDO CARILLO, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Taylor Nguyen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. BA345537)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. Bowers, Jr., Judge. Affirmed as modified.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Rony Eduardo Carillo appeals from the judgment following his conviction for second degree murder. We modify the judgment to correct sentencing errors, and as modified, affirm the judgment.
FACTS AND PROCEEDINGS
Appellant Rony Eduardo Carillo and P.R. were friends. Sometime in July or August 2008, murder victim Percy Jones told P.R. that he loved her. When P.R. did not return Jones's expressions of love, he attacked and choked her. In late August not long after Jones attacked P.R., appellant was standing outside a liquor store with Jose "Tortuga" Carballo. Both appellant and Tortuga were members of the Mara Salvatrucha (also known as "MS") street gang. Jones walked past the liquor store, which was in territory that MS claimed. Appellant told Tortuga about Jones's having choked P.R. Informed of Jones's attack, Tortuga asked Jones where he was from, which is a customary challenge between rival gang members. Jones replied he was from Compton. Jones's answer angered Tortuga because it challenged MS's control of its neighborhood.
Tortuga walked up to Jones and held a knife to Jones's throat before hitting Jones with a blow that knocked Jones down. As Tortuga walked away, Jones got up to pursue Tortuga while appellant followed Jones. When Jones caught up with Tortuga, the two started fighting. During the fight, Tortuga stabbed Jones in the right arm, severing an artery that caused him to bleed to death. Additionally, appellant kicked the wounded Jones as he lay on the ground.
The day after Jones's murder, appellant told P.R. he was "part of" Tortuga's stabbing of Jones. He told her "when you get in a gang, that's the kind of stuff you do." He also told her that Jones had grasped appellant's leg and asked for appellant's help while Tortuga attacked him, but appellant "shook him off and just left him there."
The People charged Tortuga and appellant with Jones's murder. The People further alleged that Tortuga and appellant committed the murder for the benefit of a criminal street gang. A jury convicted appellant of second degree murder, and found true the gang allegation. (Tortuga was tried separately but the record does not indicate his trial's outcome.) The court sentenced appellant to state prison for 15 years to life. This appeal followed.
DISCUSSION
1. Sufficiency of Evidence of Aiding and Abetting Murder
Appellant did not inflict Jones's mortal wound; Tortuga did. The jury nevertheless convicted appellant of second degree murder under jury instructions that presented for the jury's consideration the theory that appellant aided and abetted Tortuga's battery of Jones, the natural and probable consequence of which was murder. (People v. Brigham (1989) 216 Cal.App.3d 1039, 1052.) Appellant contends the evidence at trial was insufficient to prove that he intended to aid and abet Tortuga's battery of Jones. He also contends that even if he did aid and abet the battery, Jones's murder was not a natural and probable consequence of the battery. Both contentions are mistaken.
"An aider and abettor's derivative liability for a principal's criminal act has two distinct prongs: First, the aider and abettor is liable for the particular crime that to his knowledge his confederates are contemplating. Second, the aider and abettor is also liable for the natural and probable consequences of any criminal act he knowingly and intentionally aids and abets, in addition to the specific and particular crime he and his confederates originally contemplated." (People v. Brigham, supra, 216 Cal.App.3d at p. 1052.)
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Mere presence at the crime scene is, by itself, not aiding and abetting, but it can be one factor among others that support conviction as an aider and abettor. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Appellant contends he merely rebuffed Jones's grasping appellant's leg for help and kicked Jones only after Tortuga had sealed Jones's fate with a fatal stab wound. The evidence shows, however, that appellant did much more. "Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense." (In re Juan G., supra, 112 Cal.App.4th at p. 5.) The intent to aid and abet may form before or during the perpetrator's commission of the crime. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) Here, appellant and Tortuga belonged to the MS gang, which claimed the area in which the liquor store sat. Appellant knew Jones was from a city of a rival gang and appellant identified Jones to Tortuga as the person who assaulted P.R., thus marking Jones as a potential target and giving Tortuga a motive to attack Jones. Appellant heard Tortuga issue a gang challenge to Jones, and heard Jones respond with a provocative answer likely to trigger an attack. Appellant saw Tortuga press a knife against Jones's neck. Appellant saw Tortuga strike the first blow against Jones, knocking him to the ground. And finally, after Jones picked himself up off the ground to resume fighting with Tortuga, appellant kicked Jones. The record contains sufficient evidence to permit a rational jury to conclude appellant intended to aid and abet Tortuga's attack of Jones. (Compare Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, 1267, 1269 [defendant did not aid and abet when he said nothing while at the crime scene, made no gestures, and did not otherwise encourage perpetrator].)
Appellant asserts one cannot aid and abet a crime after it occurs. He contends the evidence shows that he kicked Jones only after Tortuga had broken off the attack following his mortal wounding of Jones. Appellant's contention is unpersuasive, first, because the evidence is in conflict whether he kicked Jones only after Tortuga inflicted the fatal knife wound. For example, appellant told P.R. that he kicked Jones to ensure fellow MS gang members would not accuse him of abandoning Tortuga in a gang fight, one implication being appellant joined the fight while it was underway. Additionally, even if appellant kicked Jones only after Tortuga knifed Jones, appellant's aggression toward Jones permitted the jury to conclude appellant contributed to Jones's death by prolonging the fight, which delayed possibly life-saving first aid that medical expert testimony established might have saved Jones if it had been delivered more quickly.
Appellant's second contention that the People failed to prove Jones's murder was a natural and probable consequence of Tortuga's battery of Jones is also mistaken. Whether a charged crime is the natural and probable consequence of the originally targeted crime is a jury question involving an objective test based on all the facts and circumstances. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The " 'question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' " (People v. Medina (2009) 46 Cal.4th 913, 920, italics in original.) Case law establishes that murder is often a natural and probable consequence of a gang fight. (Id. at p. 916 [jury could reasonably conclude that shooting death was a natural and probable consequence of a verbal challenge and fistfight/simple assault between rival gang members]; People v. Gonzales (2001) 87 Cal.App.4th 1, 6-7, 10 [shooting death a natural and probable consequence of fight where three defendants rushed out of their car to attack rival gang members whom they saw on the street and believed had thrown gang signs]; People v. Montes (1999) 74 Cal.App.4th 1050, 1055-1056 [murder was natural and probable consequence of gang fight constituting simple assault and breach of the peace for fighting in public even if aider and abettor did not know perpetrator was armed].) Thus, appellant's contention that Jones's murder was not a natural and probable consequence of Tortuga's battery of Jones, which appellant aided and abetted, fails.
"The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citations.] Consequently, the issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, 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 by the defendant." (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
2. "Natural and Probable Consequence" Jury Instruction
The court instructed the jury on appellant's responsibility for Jones's murder as a natural and probable consequence of Tortuga's battery, which appellant aided and abetted. The court instructed the jury with CALJIC No. 3.02: "One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find the defendant guilty of the crime of murder, under this theory, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of battery was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime committed the crime of murder; and [¶] 4. The crime of murder was a natural and probable consequence of the commission of the crime of battery. [¶] In determining whether a consequence is 'natural and probable,' you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen." (See also People v. Prettyman (1996) 14 Cal.4th 248, 254.)
Appellant contends the instruction was error because substantial evidence did not support it. Appellant correctly frames the propriety of the instruction as turning on whether Jones's stabbing was "a reasonably foreseeable consequence of Tortuga's battery, which appellant aided and abetted." According to appellant, the answer is "no" because he did not aid and abet Tortuga's battery of Jones, and Jones's murder was not a natural and probable consequence of the battery. For the reasons we explained in our discussion of "Sufficiency of Evidence of Aiding and Abetting Murder," supra, appellant is mistaken on both counts. Sufficient evidence existed that he aided and abetted the battery, and murder is a natural and probable consequence of a gang assault. Accordingly, the court correctly instructed the jury with CALJIC No. 3.02 on murder as a natural and probable consequence of Tortuga's attack of Jones.
3. CALJIC No. 3.00
The court instructed the jury with CALJIC No. 3.00, which defines the principals to a crime. It states:
"Principals - Defined (Penal Code § 31) [¶] Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime."
Appellant contends the court misinstructed the jury because, according to appellant, CALJIC No. 3.00 precluded the jury from convicting appellant of a lesser degree of homicide than the offense of the perpetrator, Tortuga. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118, 1120 [aider and abettor's criminal culpability depends on aider and abettor's mens rea and may be more culpable than perpetrator]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 [aider and abettor's criminal culpability may be less than perpetrator's].) Seizing on the phrase "equally guilty" in CALJIC No. 3.00, appellant argues that if "the jury found Tortuga guilty of second degree murder, then the instruction required the jury to find appellant equally guilty of the same crime as an aider and abettor regardless of his own mental state."
Appellant is mistaken. We do not review instructions in isolation. Instead, we review them as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677.) CALJIC No. 3.00 is, as far as it goes, a correct statement of the law by instructing that an aider and abettor is as guilty as a principal in the offense the perpetrator commits. Because appellant did not ask the court to correct or clarify what was an otherwise accurate statement of general legal rules, appellant cannot complain on appeal that the instruction was error. (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) But in any event, the court also instructed with CALJIC No. 3.01, which defines the elements of aiding and abetting. CALJIC No. 3.01 states:
"A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice, aids, promotes, encourages or instigates the commission of the crime. [¶] A person who aids and abets the commission of a crime need not be present at the scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and in the absence of a legal duty to take every step reasonably possible to prevent the crime, the failure to prevent it does not amount to aiding and abetting."
In contrast to CALJIC No. 3.01's detailed explanation of aiding and abetting, CALJIC No. 3.00 amounted to a brief introduction of general principles. Under those circumstances, we see no reasonable possibility that the jury failed to understand that CALJIC Nos. 3.00 and 3.01, when read together, directed the jury to evaluate appellant's individual mens rea separately from Tortuga's mens rea to determine the degree of appellant's criminal culpability. We draw additional support for our conclusion from the fact that appellant was tried separately from Tortuga. Accordingly, the instructions did not call upon the jury to decide Tortuga's guilt, which further reduced the possibility of Tortuga's culpability spilling over onto appellant and smothering the jury's obligation to assess appellant's mens rea individually. And finally, jurors did not ask the trial court whether the jury could convict appellant of a lesser included offense. (Cf. People v. Nero (2010) 181 Cal.App.4th 504, 509-510 [prejudicial error for court to inform jury that aider and abettor and perpetrator are "equally guilty" when jury asked whether it could convict aider and abettor of lesser offense].) For the foregoing reasons, the court did not misinstruct the jury with CALJIC No. 3.00.
4. Natural and Probable Consequences Doctrine
Appellant asks that we declare the natural and probable consequences doctrine an unconstitutional violation of separation of powers because it ignores the Legislature's exclusive power to define crimes. He additionally challenges the doctrine's constitutionality on the ground it violates his right to jury trial because it permits his conviction for murder in the absence of his harboring an intent to kill. Appellant acknowledges the California Supreme Court has endorsed the natural and probable consequences doctrine. (People v. Richardson (2008) 43 Cal.4th 959, 1022; People v. Prettyman, supra, 14 Cal.4th at pp. 271-274.) Appellant accepts that our Supreme Court's approval of the doctrine binds us as an intermediate appellate court and compels us to reject his contentions. Nevertheless, for the purpose of preserving his points for further review, appellant states his challenges for the record. His challenges are so noted.
5. Sufficiency of Gang Evidence
The jury found appellant participated in Jones's murder to benefit his street gang, the MS. Appellant contends insufficient evidence supported the gang enhancement's requirement that his street gang has "as one of its primary activities" the commission of one or more statutorily enumerated criminal acts. (Pen. Code, § 186.22, subd. (f).) "The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) The enumerated crimes which the People's gang expert testified were the primary activities of MS gang members were assault with a deadly weapon (§ 186.22, subd. (e)(1)), robbery (§ 186.22, subd. (e)(2)), felony extortion (§ 186.22, subd. (e)(19)), and felony vandalism (§ 186.22, subd. (e)(20)).
Appellant contends the evidence at best showed MS gang members occasionally committed enumerated offenses. Appellant is mistaken. The People's gang expert was a police officer with over eight years' experience in law enforcement, almost two years of which he had worked exclusively on a gang detail in which he had focused on the MS gang. (People v. Sengpadychith, supra, 26 Cal.4th at p. 322 ["testimony of a police gang expert who expressed his opinion that the primary activities of the group in question were drug dealing and witness intimidation, both statutorily listed crimes" supported gang enhancement]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332.) As a member of the police departments' gang detail, he monitored MS, gathered intelligence on the gang, tried to suppress its criminal activity, assisted in investigating its crimes, and helped identify its members. During his work on the detail, he had spoken to or contacted more than 50 gang members. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224 [testimony of a single witness can be sufficient to support gang enhancement].)
The gang expert testified that Jones's killing took place in the territory of MS, a gang to which appellant had belonged since 2006. The expert noted that Tortuga's question asking Jones "where are you from" is provocative in gang culture. If a suspected rival gang member answers the challenge with the name of an enemy gang or a rival gang's city, such as Jones answered here when he replied "Compton," the answer invites a gang member's violent attack. Furthermore, the gang expert testified, Jones's murder elevated the status within MS of any gang member who was involved in the killing. Jones's murder also instilled fear in the community, which gave MS members a freer hand to conduct their criminal activities. Finally, the gang expert identified at least two MS gang members who had suffered convictions for gang-related offenses involving attempted robbery in 2007, and assault with a deadly weapon in 2004. (Sengpadychith, supra, 26 Cal.4th at p. 323 [prosecutor may rely on past and currently charged offenses to prove gang allegation].) The record contained sufficient evidence for the jury to conclude appellant participated in killing Jones in order to benefit appellant's gang, and that his gang's primary activities involved statutorily enumerated offenses.
Appellant cites several cases of insufficient evidence to support the gang enhancement, but they are distinguishable. People v. Perez (2004) 118 Cal.App.4th 151, 159-160, found that several retaliatory shootings within one week and a beating six years earlier did not establish consistent and repeated criminal conduct sufficient to support a gang enhancement. Appellant also cites In re Alexander L. (2007) 149 Cal.App.4th 605, 614 which held that two convictions were by themselves insufficient to prove that the crimes underlying the convictions were the gang's primary activities. Appellant's reliance on these cases is unpersuasive because comparisons of fact patterns alleging insufficient evidence are rarely compelling. "When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.) " ' " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Here, the jury heard sufficient evidence to permit it to find the gang allegation was true.
6. Government Code DNA Assessments
The court sentenced appellant on June 9, 2010. In pronouncing sentence, the court imposed two DNA penalty assessments on appellant: a $6 penalty under Government Code section 76104.6, subdivision (a)(1), and a $6 penalty under section 76104.7, subdivision (a)(1). The version of section 76104.6 in effect when the court passed sentence stated:
"Except as otherwise provided in this section, for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."
This version was in effect from September 30, 2008, to December 31, 2010. Respondent Attorney General appears to have relied on a later-amended version in effect in 2011 when it filed its respondent's brief. (See reference in respondent's brief at page 33 to "Proposition 69" which 2008-2010 version did not contain.)
The version of section 76104.7 in effect when the court passed sentence stated:
"Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of one dollar ($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."
This version was in effect from January 1, 2008, to June 9, 2010. Respondent Attorney General appears to rely on the current version, which went into effect on June 30, 2011. (Compare the levy of $3 per $10 in the current version discussed on page 34 of respondent's brief versus the $1 per $10 levy in the statute's older version.)
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Appellant contends the court erred in imposing the two DNA penalties because the court levied them on the $30 court security fee and $30 criminal conviction assessment which the court had ordered appellant to pay. Appellant is correct on the legal point that a court may not impose DNA penalties on a court security fee. (People v. Valencia (2008) 166 Cal.App.4th 1392, 1396 ["no Government Code section 76104.6, subdivision (a) deoxyribonucleic acid penalty nor a Government Code section 76104.7, subdivision (a) state-only penalty may be imposed on a Penal Code section 1465.8, subdivision (a)(1) court security fee.") Appellant is also correct that a court may not impose DNA penalties on a criminal conviction assessment. (Gov. Code, § 70373 ["To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . . [¶] . . . [¶] (b) . . . The penalties authorized by Chapter 12 (commencing with Section 76000 [of which DNA penalties are part]) . . . do not apply to this assessment."].) The record shows, however, that the court imposed a $15 court construction penalty under Government Code section 70372. The DNA penalty statutes at issue here do not prohibit their application to a court construction penalty. However, the DNA penalty, when correctly calculated, consists of two $2-penalties for the $15 court construction penalty based on a levy of $1 for every $10 or portion of $10. (Gov. Code, former § 76104.6 ["Except as otherwise provided in this section, . . . there shall be levied an additional penalty of one dollar for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."]; former § 76104.7 ["Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of one dollar ($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."].) We direct the trial court to modify the penalty.
7. Fifteen-year Minimum Parole Eligibility
The court sentenced appellant to state prison for 15 years to life for second degree murder. In pronouncing sentence, the court stated the jury had found true the gang allegation, but the court did not expressly indicate the effect of that finding on appellant's sentence. The court's minute order stated appellant's sentence was 15 years to life for murder and 15 years to life for the gang allegation. The abstract of judgment does not, however, indicate imposition of the gang allegation enhancement. Respondent Attorney General notes in its brief that imposition of the gang enhancement in conjunction with a life sentence results in a minimum parole eligibility period of 15 years, a point appellant does not address in his reply brief. (People v. Lopez (2005) 34 Cal.4th 1002, 1007; People v. Camino (2010) 188 Cal.App.4th 1359, 1381-1382; see also Pen. Code, § 186.22, subd. (b)(5) ["Except as provided in paragraph (4) [which lists at subparagraphs (B) and (C) crimes not at issue here], any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served"].) Accordingly, we shall direct that the abstract of judgment correctly reflect the effect of the true finding for the gang allegation is a 15-year minimum parole eligibility period.
DISPOSITION
The trial court is directed to correct the abstract of judgment to impose a $2 penalty under Government Code former section 76104.6 and a $2 penalty under Government Code former section 76104.7. The trial court is further directed to correct the abstract of judgment to indicate appellant's minimum parole eligibility period of 15 years. Finally, the trial court is directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.