Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF201380C. Kathryn T. Montejano, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P.J.
INTRODUCTION
In March 2008, Rene J. Zamora (Zamora), Angel Carrasco (Carrasco) and Derek Romero (Romero) were active Surenos gang members. Around midnight on March 12, they participated in the fatal shooting of Vincent Chapa (the victim). The victim was not gang-affiliated.
Unless otherwise specified all dates refer to 2008.
An indictment was returned charging Zamora, Carrasco and Romero with murder (count 1) and discharging a firearm from a motor vehicle at a person (count 2). (Pen. Code, §§ 187, subd. (a), 12034, subd. (c).) Special circumstances of lying-in-wait murder, drive-by murder, and street gang murder were alleged. (§ 190.2, subd. (a)(15), (21)-(22).) Firearm discharge and street gang allegations were attached to both counts. (§§ 12022.53, subds. (d) & (e)(1), 186.22, subd. (b)(1)(C).) A Welfare and Institutions Code section 707, subdivision (d)(1), allegation was pled as to Carrasco.
All further statutory references are to the Penal Code unless otherwise indicated.
In June 2009, Romero entered into a negotiated plea agreement. It limited Romero’s prison exposure to 27 years in exchange for his guilty plea to lesser offenses and truthful testimony at trial of his codefendants.
Zamora and Carrasco were jointly tried in November 2009. The jury found them guilty on both counts and it found all of the special allegations to be true.
Zamora and Carrasco were sentenced to life without the possibility of parole (LWOP), plus a consecutive term of 25 years to life. A $10,000 parole revocation fine was imposed. (§ 1202.45.) They were prohibited from contacting the victim’s family (the no-contact order).
Zamora and Carrasco separately appealed. They raised different issues.
Carrasco argues the jury was prejudicially misinstructed on accomplice liability. Also, he contends imposition of the firearm enhancement violated federal constitutional double jeopardy principles. Neither of these arguments is persuasive. Carrasco also argues the parole revocation fine was unauthorized. We agree. Finally, he argues the no-contact order is unauthorized. Respondent concedes this point and we accept the concession as properly made. We will modify the judgment to correct the sentencing errors and affirm.
FACTS
I. T.R.’s Testimony.
T.R. testified that he and the victim lived on the north side of Visalia. They spent the evening at the victim’s house playing video games. Around 11:00 p.m., they drove to T.R.’s house and T.R. checked in with his mother. T.R. snuck out of the house and the two of them started to walk back to the victim’s house.
A van passed them, made a U-turn and came back towards them. They ran into a field and hid by lying down in the tall grass. The driver of the van parked and turned the van’s headlights off. About five minutes later, the driver of the van started the vehicle and began to drive northbound.
T.R. said to the victim, “Now is our chance. Let’s make a run for your house.” They began running towards the victim’s house. The victim was overweight and could not run quickly. Although they started out together, the victim soon lagged behind T.R.
The van sped up and headed towards them. T.R. was approximately 15 feet ahead of the victim. T.R. turned around and saw the van slow as it approached the victim. The passenger side of the van was closest to the victim. When the van was alongside the victim, T.R. heard the sound of five gunshots. Then he saw the victim on the ground. The van drove away.
T.R. did not see how many people were inside the van and could not identify any of its occupants. T.R. did not see who was firing the gun. He did not hear anyone in the van say anything.
II. Romero’s Testimony.
Romero testified that in 2008 he and Carrasco were members of Vicky’s Town (VST). Zamora belonged to a different gang, but associated with VST members.
Romero, Zamora and Carrasco attended a party on the evening of March 11. Zamora brought a gun to the party. He tucked it into the waistband of his pants.
Around 9:00 p.m., they decided to go “tagging.” They got into a van. Zamora drove and Carrasco sat in the front passenger seat. Romero sat in the rear passenger seat. Zamora wore black leather gloves. He brought the gun with him.
After tagging a few places, they decided to drive around Visalia to “go catch somebody slipping.” This meant they would “go find somebody walking around and see if we can jump them.” They drove around for about two hours and did not find anyone to jump. They were about to give up when Carrasco spotted two people close to a grocery store. Zamora drove into the parking lot and made a U-turn so they could catch the two people. The two people ran towards a field across the street and hid in some shrubs. Zamora stopped the van and turned off its lights. They waited for approximately 10 minutes. Eventually, they decided to leave.
As Zamora started to drive away, two people ran out of the bushes. They were both male. One, later identified as the victim, was chubby; the other, later identified as T.R., was skinny. T.R. ran faster than the victim and soon was in front of him. Romero was getting ready to jump out of the van because he thought they were going to jump the two men by “throw[ing] blows.” Romero saw a white truck coming towards them so he tried to convince the others to leave. He almost convinced Zamora, but Carrasco said, “No. Drive up close to them.” Carrasco said something else to Zamora that Romero did not hear. Then Zamora handed Carrasco the gun. Carrasco placed it on his lap.
Zamora drove the van towards the victim, who was walking now. Zamora slowed the van as it neared the victim. Zamora, Carrasco and Romero all said “South Side. South Side” to the victim because they thought “he was northern” and they wanted to intimidate him. Carrasco asked the victim where he was from. The victim did not respond so Carrasco repeated the question. The victim “mumbled North Side.” Carrasco said, “[F]uck that. This is South Side.” Carrasco stuck his head and right arm out the front passenger window and fired a shot at the victim. The shot missed the victim. Then Carrasco fired two or three shots at the victim. Romero knew the victim was hit “because he screamed.” Then Zamora “peeled out” and drove away.
Zamora and Romero shook Carrasco’s hand and congratulated him. They parked for a short time. Carrasco gave the gun to Zamora. Zamora examined the gun to determine if there was any ammunition left because “they wanted to do it again.” Zamora was still wearing gloves. They were out of ammunition so they decided to go back to Hanford.
On the way to Hanford, they noticed a patrol car following behind them. Carrasco threw the gun, gloves, bandana and spray paint can out the passenger window. Shortly thereafter, the patrol car pulled the van over and they were all arrested.
About five months after the murder, Romero decided to drop out of the gang. He thought Zamora was planning to kill him.
Romero admitted he wrote poems about gang murders prior to the shooting. He intended to put the poems on his MySpace page to intimidate rival gang members and increase recognition of VST.
The jury was instructed that if it found the charged crimes were committed, then Romero was an accomplice.
III. Other Testimonial and Physical Evidence.
The victim was shot twice in the chest and died at the scene. A lead slug was removed from the victim’s body. A criminalist determined it was consistent with a.38-caliber bullet.
A neighbor, F.G., testified he heard “burning of tires on the street” and five gunshots. He looked outside and saw a van speeding away and a person lying on the ground. Another neighbor testified he/she heard at least five gunshots.
T.R. and F.G. were driven by police officers to the location where Zamora’s van was stopped. They identified this van as the vehicle they saw.
A can of spray paint, a pair of black leather gloves and a 5-shot revolver with a blue bandana wrapped around the handle (the revolver) were found near the area where the van was traveling before it was pulled over. The revolver, which was a Rossi Interarms brand.38-caliber special, contained five spent cartridge casings of various brands.
Carrasco’s fingerprints were lifted from the spray paint can. Carrasco’s fingerprints were lifted from the van’s exterior rear passenger sliding door. Romero’s fingerprints were lifted from the exterior hood on the passenger side of the van.
Gunshot residue (GSR) was found on both of Carrasco’s and Romero’s hands. GSR was not found on either of Zamora’s hands. GSR was found on the interior of the van.
Zamora’s bedroom was searched. A small bag containing two.38-caliber rounds was found inside a dresser drawer. These bullets were capable of being fired by the revolver.
A photo of Zamora posted on his MySpace page depicted him flashing a gang sign while holding a gun that had its handle wrapped in a blue bandana.
A gang expert testified VST is a fast-growing clique of the Surenos gang. The Surenos’ primary activities include homicide and assault with a deadly weapon. In the gang expert’s opinion, Carrasco, Zamora and Romero were all active Surenos members on March 12. Neither the victim nor T.R. had any gang affiliations. Based on a hypothetical, a gang expert opined the shooting was committed in furtherance of and for the benefit of a criminal street gang.
IV. The Defense.
Carrasco and Zamora both rested without calling any witnesses.
DISCUSSION
I. Any Misinstruction on Accomplice Liability is Harmless.
The jury was instructed on two theories of liability for the victim’s murder: as the direct perpetrator or as an aider and abettor. The court used CALCRIM Nos. 400 and 401 to instruct on aiding and abetting. At the time of trial, CALCRIM No. 400 contained a sentence providing: “A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” (Italics added.)
Carrasco argues this instruction improperly ties the aider and abettor’s mental state to that of the perpetrator’s, thereby lowering the People’s burden of proof. After carefully examining the record, we conclude the asserted instructional error is harmless beyond a reasonable doubt and reject Carrasco’s argument for this reason.
A. This instructional claim was not forfeited.
Relying on People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego), respondent argues Carrasco’s challenge to CALCRIM No. 400 was forfeited by the absence of contemporaneous objection. We are not persuaded. Samaniego concluded that a challenge to CALCRIM No. 400 was not preserved for direct review because modification or clarification had not been sought below. (Id. at p. 1163.) We differ with Samaniego on the question of forfeiture. A defendant’s claim that an instruction misstated the law or violated his due process right “is not of the type that must be preserved by objection.” (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; see also § 1259.) We believe People v. Flood (1998) 18 Cal.4th 470, 482, footnote 7, and People v. Smithey, supra, 20 Cal.4th at page 976, footnote 7, necessitate the conclusion that the instructional challenge presented here is cognizable despite the absence of contemporaneous objection.
B. An aider and abettor’s mens rea is personal.
In People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), the California Supreme Court held an aider and abettor sometimes “may be guilty of greater homicide-related offenses than those the actual perpetrator committed.” (Id. at p. 1114.)
In People v. Nero (2010) 181 Cal.App.4th 504 (Nero), the Second District Court of Appeal examined McCoy’s reasoning and determined that, while our Supreme Court did not expressly hold that aider and abettors may be guilty of lesser homicide-related offenses than those committed by the actual perpetrators, it “nonetheless suggests it.” (Id. at p. 513.) In Nero, the appellate court explained that McCoy concluded an aider and abettor may harbor a greater mental state than of the direct perpetrator based on the premise that one actor’s mens rea may not always be equal to another’s. (Id. at p. 514.) The aider and abettor is liable for his own mens rea. Guilt is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state. An aider and abettor’s mens rea is personal, and may be different than the direct perpetrators. (Ibid.) After explaining McCoy’s reasoning, Nero examined the pattern instructions on aider and abettor liability. It determined, in relevant part, that “even in unexceptional circumstances, ” CALCRIM No. 400 “can be misleading.” (Id. at p. 518.) Nero characterized the pattern instructions on aider and abettors as confusing and suggested they be modified. (Ibid.)
Nero’s suggestion concerning modification of the pattern instructions was adopted by the Judicial Council of California. In April 2010, CALCRIM No. 400 was reworded and the problematic word “equally” was eliminated. CALCRIM No. 400 now provides, in relevant part: “A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.” The bench notes to CALCRIM No. 400 currently provides, in relevant part: “An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state. [Citations.]” (Judicial Council of Cal. Crim. Jury Instns. (Apr. 2010 supp.) Bench Notes to CALCRIM No. 400, p. 28.)
C. The asserted misinstruction is harmless beyond a reasonable doubt.
The applicable test for assessing prejudice in this instance is the Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 24; Samaniego, supra, 172 Cal.App.4th at p. 1165; Nero, supra, 181 Cal.App.4th at pp. 518-519.) “Under that test, an appellate court may find the error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. [Citation.]” (Samaniego, supra, 172 Cal.App.4th at p. 1165.)
After examining the record in this case, we are convinced the instructional error did not contribute to the verdict. The People convincingly proved that Carrasco was the shooter. He was the direct perpetrator of the murder, not an aider and abettor. Romero testified Zamora handed the gun to Carrasco and Carrasco fired several shots at the victim. T.R. testified that the passenger side of the van was closest to the victim. When the van was stopped by the patrol car, Carrasco was sitting in the front passenger seat.
Further, there is nothing in this case indicating that the jury thought Carrasco was less culpable than Zamora. The jury never asked a question or indicated it was confused on the question of aider and abettor liability. Nothing suggests that the jury wanted to convict Carrasco of something less than first degree murder with three special circumstance findings, but erroneously believed that it could not do so.
Finally, error in instructing the jury concerning lesser forms of culpability is harmless when it can be shown that the jury properly resolved the question under the instructions, as given. (People v. Hart (2009) 176 Cal.App.4th 662, 673-674.) Here, the verdicts on the special allegations demonstrate the jury found Carrasco personally intended to kill the victim. The jury found three special circumstance allegations to be true. The jury was instructed it could not find a special circumstance allegation true for a defendant who was not the actual killer unless the People proved beyond a reasonable doubt that he possessed the intent to kill. (CALCRIM No. 702.) Thus, in finding the special circumstance allegations true, the jury necessarily resolved the factual question of Carrasco’s mens rea (i.e., his intent to kill) adverse to him. The jury found beyond a reasonable doubt that Carrasco personally intended to kill the victim. Therefore, the question whether Carrasco possessed a lesser mens rea than did Zamora was necessarily resolved against him. Although counsel for Carrasco and Zamora argued Romero was the shooter and they did not have any advance knowledge of the shooting or intent to kill, no testimony was proffered to support this theory. If the jury had believed this argument, they would not have found all the special circumstances true.
For all of these reasons, we conclude it is not reasonably possible that the alleged misinstruction on aider and abettor liability affected the verdict. The asserted instructional error was harmless beyond a reasonable doubt. (Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166 [CALCRIM No. 400’s phrase “equally guilty” was misleading as applied, but error was harmless beyond a reasonable doubt where jury found special circumstance allegation to be true].)
II. The Firearm Enhancement did not Violate Double Jeopardy Principles.
To preserve the point “for later review, ” Carrasco contends enhancement of his sentence pursuant to subdivision (d) of section 12022.53 is inconsistent with federal constitutional double jeopardy principles. Carrasco correctly recognizes the California Supreme Court has rejected multiple-conviction and double jeopardy challenges to imposition of this enhancement. (People v. Sloan (2007) 42 Cal.4th 110, 115-123 (Sloan); People v. Izaguirre (2007) 42 Cal.4th 126, 130-134 (Izaguirre); People v. Palacios (2007) 41 Cal.4th 720, 725-733 (Palacios).) He also acknowledges we are bound to follow the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962)57 Cal.2d 450, 455.) For the reasons expressed in Izaguirre, Sloan and Palacio, we reject Carrasco’s double jeopardy claim and uphold imposition of the firearm enhancement.
III. The Parole Revocation Fine must be Stricken.
Carrasco was sentenced on count 1 to LWOP, plus 25 years to life. A determinate term of two years was imposed and stayed for count 2. The remaining enhancements were stayed. A $10,000 restitution fine was imposed, and a $10,000 parole revocation fine was imposed and stayed pending successful completion of parole. (§§ 1202.4, subd. (b), 1202.45.)
Carrasco argues the parole revocation fine must be stricken. We agree. As will be explained, a parole revocation fine is not authorized where the components of the sentence do not include one or more unstayed determinate terms.
“A sentence is unauthorized when it could not lawfully be imposed under any circumstances in the particular case. [Citation.]” (People v. Price (2004) 120 Cal.App.4th 224, 243.) The point is cognizable because the waiver doctrine does not apply where the trial court exceeds its statutory authority. (People v. Andrade (2002) 100 Cal.App.4th 351, 354.)
Section 1202.45 provides, in relevant part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”
In People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), the defendant was convicted of first degree murder with special circumstances, and of second degree murder. He was sentenced to LWOP and an indeterminate life term. Determinate terms for firearm use enhancements were imposed. (Id. at p. 1181.) The appellate court held when the sentence does not presently allow for parole and there is no evidence it ever will, a parole revocation fine is not authorized. (Id. at pp. 1181-1186.)
In People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), our Supreme Court held a parole revocation fine is properly imposed when a defendant is sentenced to both indeterminate and determinate terms, because the latter carries with it a parole period and a suspended parole revocation fine, even though the defendant is unlikely to ever serve any parole of the parole period on his or her determinate term. (Id. at p. 1075.) Brasure distinguished Oganesyan by pointing out that no determinate term had been imposed under section 1170. (Brasure, supra, at p. 1075.)
Most recently, in People v. McWhorter (2009) 47 Cal.4th 318 (McWhorter), the defendant was sentenced to death after being convicted of two counts of first degree murder with special circumstances and one count of robbery. A parole revocation fine was imposed and stayed. Citing Oganesyan, our Supreme Court accepted the People’s concession that the parole revocation fine must be stricken, writing: “Defendant last claims that because his sentence did not include a period of parole, the trial court erred in imposing and then staying a $200 parole revocation restitution fine pursuant to section 1202.45. He is correct. [Citation.] Respondent has conceded the point. We shall therefore order the fine stricken and the judgment modified to so reflect.” (Id. at p. 380.) The court did not articulate a basis for treating the parole revocation fine before it differently from the fine it upheld in Brasure. The only apparent factual distinction between the two cases is that the fine upheld in Brasure was appended to an unstayed determinate sentence, while the fine stricken in McWhorther was appended to the sentence for the robbery which was stayed pursuant to section 654.
The case before us is like McWhorter, and distinct from Brasure, because the parole revocation fine is attached to a determinate term that was stayed. Carrasco’s sentence does not include an unstayed determinate term. Therefore, the parole revocation fine is unauthorized. Following and applying McWhorter, we will strike the parole revocation fine. (McWhorter, supra, 47 Cal.4th at p. 380.)
IV. The No-contact Order must be Stricken.
Carrasco argues the trial court exceeded its jurisdiction by including a no-contact order as part of the sentence. Respondent concedes the point and we accept the concession as properly made. There is no statutory basis for the no-contact order and no showing was made demonstrating a need for it. Therefore, we agree the order is unauthorized and must be stricken. (See, e.g., People v. Stone (2004) 123 Cal.App.4th 153 [three-year restraining order unauthorized]; People v. Ponce, supra, 173 Cal.App.4th 378 [protective order stricken].)
This challenge may be raised for the first time on appeal. (People v. Ponce (2009) 173 Cal.App.4th 378, 381-382.)
DISPOSITION
The judgment is modified to strike the parole revocation fine and the no-contact order. As modified, the judgment is affirmed. The superior court is ordered to prepare an amended abstract of judgment and to transmit a copy of it to the appropriate authorities.
WE CONCUR: GOMES, J., KANE, J.