Opinion
D070551
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS CRUZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen Somerville, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. SCD264900) APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
One day in the City Heights area of San Diego, a group of young men surrounded another young man, hit him, and took his bicycle. A jury convicted one of the group members, defendant and appellant Jesus Cruz, of robbery (Pen. Code, §211; count 1) and simple battery (§ 242; count 2). The trial court sentenced Cruz to jail for 240 days and probation for three years. Custody credit was awarded and fines and fees imposed.
All statutory references are to the Penal Code unless otherwise stated.
Cruz appeals, contending (1) the trial court erroneously refused to instruct the jury regarding a proposed defense, the need to defend himself or one of his companions from the robbery victim, who had blacked out when he was hit and his bicycle taken, but who then fought back; and (2) the trial court committed reversible error by improperly instructing the jury on an aiding and abetting theory, that the robbery was a natural and probable consequence of the simple battery. (People v. Chiu (2014) 59 Cal.4th 155, 163-167 (Chiu) [restricting use of natural and probable consequence doctrine regarding consideration of premeditated murder charge].) We disagree that any error occurred, and affirm the judgment.
I
FACTUAL BACKGROUND
A. Sequence of Events; First Incident
In 2015, Cruz and his friends were associated with the "A.S.B." tagging movement. A.S.B. usually stands for "Always Street Bombing [or Brawling]," and its participants paint graffiti in the area to promote their cause.
On December 21, 2015, Marco Torres was 16 years old. He was sitting outside in the neighborhood with his bicycle, talking on his phone. Torres saw a white car with five or six people in it park at the top of a hill. He recognized some of the group from prior run-ins he had with them. Once, about eight months before, some of them tried to steal food from his sister's ice cream truck, so he chased and yelled at them. During a previous fight he had with some members of the group, one of them stole another bicycle he had.
On this occasion, two people got out of the white car, started running toward Torres and confronted him. He identified Cruz as the driver of the car. A number of people from the car, including Cruz and Hugo Rivera, circled around him, grabbing at his bike and his clothes. People in the group, including Cruz, were yelling "A.S.B." Torres heard Rivera or his friend Paco Varela yelling, "bust out a knife" and "take the bike." Some of the men, including Cruz, started "sucker punching" Torres. Although he tried to cover his face, he got punched there by about six people and blacked out.
B. Sequence of Events; Second Incident and Curbside Lineup
When Torres woke up, he found that his bicycle and hat were gone and some members of the group were running away toward the car. After he realized he had been "jumped," he angrily started running after two people from the group who were still on foot. Some distance away, Torres hit one of those people in the head, either Adrian Acosta or another man, Jose Cruz (Jose), and kept running. Two or three members of the group chased and hit Torres in the head a few more times, then he ran home. When Torres got there, his sister saw blood on his face and called police.
Responding officers interviewed Torres and photographed his facial and hand injuries. He told police officers that after his bike was stolen, he ran over and hit a guy, so they went after him again. As shown on Officer Tamagni's body recorder, Torres said, "yea I hit one of them . . . I ran up on one of them and hit him in the head how hard and he was like oh shit." A helicopter unit was activated and found the white car that Torres described, with Cruz, Rivera, and their friend Paco Varela in it. Other officers found Acosta and Jose and brought them to a curbside lineup next to the car. Torres identified Rivera as the person who stole his bike, and Cruz as the person who had been driving the car before the fight, yelling A.S.B. during the fight, and pulling a knife. Torres said Acosta repeatedly punched him in the face. Torres was not sure which man he chased and hit after his bicycle was taken.
At trial, testimony was taken from Torres, Rivera, and Acosta, as well as several law enforcement officers. Rivera testified that one of his group started arguing and fighting with Torres, after getting out of the car. Both Cruz and Rivera were yelling during the fight. Rivera took Torres's bike, passed it on to somebody else, and ran away. Rivera said that A.S.B. stands for "always stacking bills."
The investigating detective testified that he and his partner had seen graffiti in the neighborhood not only from A.S.B but also a rival group, U.P.S. Sometimes the rivalries between territorial or transient tagging groups could escalate to violence.
Expert evidence was presented and stipulated to about A.S.B.'s and other groups' tagging and graffiti activities. We need not summarize it in more detail because it is not particularly relevant to the issues on appeal.
Acosta testified he was Cruz's best friend. That day, they were riding around in the car and they encountered Torres on his bicycle, and Acosta started arguing with him. Acosta said he wanted to discuss why Torres had tried to run him over with a car, but Torres would not cooperate, so Acosta left. Torres then started chasing the group, and Acosta and the others fought back. Acosta said he did not hit Torres until Torres hit his friend Jose and then Acosta. A few weeks after the incident, in January 2016, Acosta told an interviewing probation officer that an argument with Torres started, somebody yelled "take the bike," he and another man hit Torres a couple of times, and then they ran away.
During closing argument, Cruz's attorney agreed that Cruz, by stopping his car there that day, had aided and abetted the fight, and simple battery was "something that happened." There was bad blood between Torres and Acosta. However, counsel argued there was a reasonable doubt about whether Cruz intended that any robbery would follow the fight, such as when Rivera took the bike.
The court and counsel discussed jury instructions in some detail, as we shall later explain. After the jury convicted Cruz of both charged counts, he timely appealed.
II
DEFENSE OF ANOTHER
Cruz first claims the trial court erroneously failed to instruct the jury about the standards for raising an affirmative defense concerning his reasonable belief that he needed to come to the defense of another, Acosta. (§§ 692, 694 [a person may act in defense of another person about to be injured, by making resistance sufficient to prevent a public offense].)
A. Applicable Standards
We review a claim of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.)
On review, we do not set aside a judgment on the basis of instructional error unless, after an examination of the entire record, it appears that an error has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. (People v. Wharton (1991) 53 Cal.3d 522, 571-572; People v. Watson (1956) 46 Cal.2d 818, 836.)
The trial court must instruct the jury on affirmative defenses if the defendant relies on the defense, or if substantial evidence is presented to support it. (Manriquez, supra, 37 Cal.4th 547, 581; People v. Barton (1995) 12 Cal.4th 186, 195.) In this context, substantial evidence means evidence of a defense which, if believed, would be sufficient to enable the jury to find a reasonable doubt as to the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982-983 [under that analysis, trial court does not determine credibility of defense evidence when deciding if it supports a proposed jury instruction].)
Where supported by the evidence, and as enunciated in CALCRIM No. 3470, a defendant may raise as a defense that he or she acted in lawful self-defense or defense of another, if: "1. The defendant reasonably believed that [he or a third party] was in imminent danger of suffering bodily injury [or being touched unlawfully]; 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND 3. The defendant used no more force than was reasonably necessary to defend against that danger." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083 (Humphrey) [jury must consider what " 'would appear to be necessary to a reasonable person in a similar situation and with similar knowledge' "].)
B. Record and Analysis
The trial court and counsel discussed jury instructions relative to the simple battery charge ("battery"). The prosecutor had not submitted any self-defense instructions, on the ground that the evidence had shown there were two separate incidents of physical violence, and he was arguing that the battery had taken place during the first incident. He said the evidence did not show Torres had shown any aggression at the time that the entire group, including Cruz, was there. Defense counsel responded that Acosta had testified about fighting back after Torres threw a first punch at him, and thus a self-defense instruction was being requested.
The court disagreed with defense counsel that there was substantial evidence to give a self-defense instruction, since the evidence showed Torres had thrown a punch, but at a time later than the initial attack. Defense counsel continued to object, arguing that it was a matter of fact for the jury to decide on the sequence of events. The court responded that substantial evidence was required to support an instruction about self-defense, but Cruz could only show there was "some" evidence and not any substantial evidence. No such instruction was given.
From the reported discussion, it is difficult to find that Cruz's attorney made anything beyond an implied reference to a defense of another theory. Admittedly, he was talking about Torres punching Acosta, but he did not discuss whether Cruz was present at that location and time. Acosta's probation officer testified that Acosta admitted to him that one of his group hit Torres before Torres started hitting back. Cruz did not bring forward any evidence that Torres was acting aggressively toward anyone at the time the group surrounded, grabbed and hit him, and made off with his bicycle. After that happened, Cruz started going back to his car. He now argues there was conflicting evidence about aggression, but this approach inappropriately conflates the different sequences of events described by the various witnesses.
Assuming that this instructional issue was properly preserved for appeal, we would not find any such claimed error adversely affected Cruz's substantial rights. (§ 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [necessary to ascertain whether the asserted error, if any, would result in prejudice].) The trial court objectively evaluated the evidence on the entire sequence of events, which showed there were two separate incidents of violence. Torres testified that during the first phase of the events, Cruz was yelling A.S.B. and pulling out a knife. Cruz's attorney did not dispute that a battery had taken place early during the incident. Even in light of the testimony from Acosta that Torres acted as the aggressor toward him at some point, neither Acosta nor any other witnesses testified to facts showing that reasonable persons would have believed that they were possibly in need of defense against Torres, at the critical time that the group was first surrounding and hitting or sucker punching him. (Humphrey, supra, 13 Cal.4th 1073, 1082-1083 [need for self-defense depends on what would appear to be necessary to a reasonable person in a similar situation].) There is no indication that the court incorrectly weighed the evidence in deciding not to give an instruction on the battery charge about coming to the defense of another.
Also, Cruz cannot persuasively attack the robbery charge by arguing he was deprived of a right to provide a justifiable defense concerning battery. As we next discuss (pt. III, post), the prosecutor took the position that Cruz was likewise guilty of the robbery of Torres, as a natural and probable consequence of the battery. The instructions on battery were appropriate, and no instructional error undermined either that count or the robbery charge, specifically on this defense of another theory. Without a showing of error or prejudice, we need not consider harmless error arguments.
III
NATURAL AND PROBABLE CONSEQUENCE CLAIMS
Cruz argues the trial court should not have given the jury an instruction about the natural and probable consequence of the target crime, battery, as applied to robbery. He contends robbery was not a natural and probable consequence of battery, and under an arguably evident trend of the law, the natural and probable consequence doctrine "is not a valid legal basis to find a defendant guilty of a crime." (But see Chiu supra, 59 Cal.4th 155, 163 [natural and probable consequences doctrine is a common law principle "firmly entrenched in California law"].)
A. Applicable Standards of Criminal Liability
An aider and abettor may be convicted for crimes committed by the direct perpetrator under two alternative theories: direct aiding and abetting principles and the natural and probable consequences doctrine. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Under direct aiding and abetting principles, the defendant is guilty of the intended offense if he or she acted with knowledge of the direct perpetrator's criminal purpose, with an intent or purpose either to commit, encourage or facilitate commission of the target offense. (Id. at p. 1118.)
Alternatively, an aider and abettor may be found "guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime." (People v. Smith (2014) 60 Cal.4th 603, 611 (Smith).) " '[A] person who aids and abets the commission of a crime is a "principal" in the crime, and thus shares the guilt of the actual perpetrator.' " (Ibid.) Liability of an aider and abettor is imposed under the natural and probable consequences doctrine if " ' "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." ' " (Ibid.; People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman) [close connection required between the target crime aided and abetted and the collateral offense actually committed].)
"For a criminal act to be a 'reasonably foreseeable' or a 'natural and probable' consequence of another criminal design it is not necessary that the collateral act be specifically planned or agreed upon, nor even that it be substantially certain to result from the commission of the planned act." (People v. Nguyen (1993) 21 Cal.App.4th 518, 530 (Nguyen).) "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.] . . . [T]he 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." (Id. at p. 531.)
Depending on the sequence of events that is unfolding, "[a] person may aid and abet a criminal offense without having agreed to do so prior to the act." (Nguyen, supra, 21 Cal.App.4th at p. 531.) All the circumstances that led up to a participant's last act of aiding or encouraging the principal actor in committing the target offense must be considered, when determining whether the collateral criminal offense was reasonably foreseeable to that participant. (Id. at p. 532.)
In Chiu, supra, 59 Cal.4th 155, 158-159, the court addressed whether an aider and abettor who knew of and intended to facilitate a target offense (i.e., assault or disturbing the peace) could be convicted of the nontarget offense of premeditated murder under the natural and probable consequences doctrine, where the direct perpetrator had committed premeditated murder. Noting that the natural and probable consequences doctrine is not expressly enunciated in California's statutory scheme (e.g., § 31), the extent of aiding and abetting liability for a particular offense should be determined by the courts by "keeping in mind the rational function that the doctrine is designed to serve and with the goal of avoiding any unfairness which might redound from too broad an application." (Chiu, supra, at p. 164.) As a matter of first impression, the court in Chiu concluded that under the natural and probable consequences doctrine, an aider and abettor cannot be convicted of the nontarget offense of first degree premeditated murder. (Id. at pp. 163-168.) The court limited its holding to the issues surrounding premeditated first degree murder. (Id. at pp. 158-159, 166-167.)
B. Instructions Given; Argument
Here, the jury was instructed on robbery under CALCRIM No. 1600, that the People were required to prove that the property of another was taken from the victim's immediate presence and against that person's will, through the use of force or fear. With respect to criminal intent, the instruction stated that proof was required of an intent to deprive the owner of the property permanently or for an extended a period of time, and the intent to take it must have been formed before or during the time that force or fear was used.
In discussing the jury instructions on aiding and abetting, the court and counsel acknowledged that the law on the natural and probable consequences doctrine was evolving in cases involving an element of premeditation, as shown by Chiu, supra, 59 Cal.4th at pages 163 through 167. The defense objected to giving CALCRIM No. 402 on the basis that a different specific intent was required for battery as opposed to robbery. The defense also argued that not enough information had been presented at trial to show that a reasonable person, who was getting out of a car to engage in a confrontation, would be able to foresee that a robbery would take place. In response, the prosecutor cited Nguyen, supra, 21 Cal.App.4th 518 as an example of the proper application of the doctrine, as it concluded a sexual assault could be a foreseeable consequence of a robbery. The court gave the instruction over defense objection.
The aiding and abetting instructions given also included CALCRIM Nos. 400 and 401. The jury was told that Cruz could be guilty either as a direct perpetrator of the offense, or through aiding and abetting principles. He could also be found guilty of other crimes that occurred during the commission of the first crime pursuant to the natural and probable consequences doctrine.
Pursuant to CALCRIM No. 402, the jury was told first to decide whether Cruz was guilty of battery, and if so, whether he was guilty of robbery. The instruction continued: "Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. [¶] To prove that the defendant is guilty of Robbery, the People must prove that: [¶] 1. The defendant is guilty of Simple Battery," and that during the battery, a coparticipant in that battery committed the crime of robbery. The instruction required consideration of whether, "[u]nder all of the circumstances, a reasonable person in the defendant's position would have known that the commission of Robbery was a natural and probable consequence of the commission of the Simple Battery. [¶] A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. . . . [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence."
During closing argument, the prosecutor contended that Cruz was one of the direct participants in the fight that resulted in Torres's bicycle being stolen, but even if he was not, he had aided and abetted the battery. The prosecutor went on to argue that the testimony showed that it was not Cruz who took the bike, but probably Rivera who took it and handed it off to Acosta. Cruz could still be held for robbery under a direct aiding and abetting theory. Alternatively, the prosecutor pointed that during the beating, "someone yelled 'take the bike.' That's probably going to give everybody in that group a pretty good indication they are now moving on from a battery and they're taking the bike." He contended that the taking of the bicycle was the natural and probable consequence of the battery on Torres, and "it was extremely reasonable and foreseeable" that the battery was going to turn into a robbery during this scenario, in which Torres was being victimized while he was in possession of something valuable.
Defense counsel admitted during closing argument that a battery took place, but contended the evidence did not convincingly show that Cruz knew the robbery was going to take place and that he intended to help it go forward. Defense counsel referred to the bad blood between Torres and Acosta, and suggested that while Torres was being hit, he could not really have known which one of the assailants was yelling "A.S.B." From those circumstances, the defense argued there was a reasonable doubt that Cruz had anything to do with the robbery.
C. Analysis
On appeal, Cruz argues that CALCRIM No. 402 should not have been given, because the evidence did not disclose a close enough connection between battery as the target crime, and the separate robbery offense, in order for the natural and probable consequences doctrine to apply. He specifically contends the evidence only showed a confrontation between members of rival tagging crews that was not reasonably likely to lead to a robbery.
More generally, Cruz argues the natural and probable consequences theory is a disfavored doctrine that is in the process of being narrowed by the California Supreme Court, as shown in Chiu, supra, 59 Cal.4th 155. He would find it inapplicable to this case, for lack of comparable intent that was proven, as between the group's battery offense and Rivera's robbery.
In his opening brief, Cruz mentions that review has been granted in an attempted premeditated murder case, People v. Mateo, on an aiding and abetting issue involving the natural and probable consequence doctrine. (Review granted May 11, 2016, S232674.) The order stated, "In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) ___ U.S. ___ and People v. Chiu (2014) 59 Cal.4th 155?"
"Robbery requires the specific intent to deprive the victim of his or her property permanently. . . . The specific intent with which an act is performed is a question of fact." (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007-1008 [substantial evidence existed of appellant's intent to permanently deprive owner of his property, to support his robbery conviction].) --------
In People v. Flores (2016) 2 Cal.App.5th 855, 869 (Flores), this court analyzed Chiu as "limited to an aider and abettor's liability on a natural and probable consequences theory for first degree murder," because "the animating concerns of Chiu are not sufficiently analogous to extend its application to an aider and abettor's liability on a natural and probable consequences theory for torture." The court in Chiu left open other issues concerning natural and probable consequences of an offense, to be decided consistently with the proper function and application of the doctrine, in a fair and predictable manner. (Chiu, supra, 59 Cal.4th at p. 164.)
Extending this approach to robbery, section 211 defines the nontarget offense as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Unlike in Chiu, supra, 59 Cal.4th 155, the statute does not divide robbery into degrees with different levels of punishment. Proof of robbery includes a felonious taking element, which is the intent to steal or to deprive the owner permanently (more or less) of the property. (People v. Bacon (2010) 50 Cal.4th 1082, 1117.)
The evidence showed that Cruz was part of the group activity of intimidation and battery, just before his companion Rivera forcibly took the bicycle and handed it off to someone, probably Acosta. For the natural and probable consequences doctrine to apply, the robbery statute did not require a particular mental state similar to premeditation and deliberation ("uniquely subjective and personal"), such as the Supreme Court was analyzing in Chiu. supra, 59 Cal.4th 155. (See Flores, supra, 2 Cal.App.5th at p. 870 [Chiu does not apply to crime of torture because unlike murder, torture is not divided into degrees based on personal intent].)
Instead, the natural and probable consequences doctrine may apply to a crime that is reasonably foreseeable, and such a resulting offense need not be committed for reasons within the common plan. (Smith, supra, 60 Cal.4th 603, 617.) Even where a nontarget offense was unintended, culpability may be imposed on the aider and abettor with respect to that offense, where a reasonable person could have foreseen the commission of the nontarget crime. (Chiu, supra, 59 Cal.4th at p. 164; Flores, supra, 2 Cal.App.5th 855, 868.) "A person may aid and abet a criminal offense without having agreed to do so prior to the act." (Nguyen, supra, 21 Cal.App.4th at p. 531.)
Evidence was provided about Torres's previous run-ins with Acosta and others in the group. He had earlier tried to defend his sister from thefts by a group that included some of these members, and he said members of the same group took another bicycle from him. The neighborhood had different examples of graffiti in the area, and the investigating officer said that rivalries between tagging groups sometimes escalated into violence. When participating in the group's battery, Cruz put himself in a position of being able to foresee that another criminal offense involving force or fear was likely to occur, especially since the group tackled Torres while he was in possession of valuable property. While he was first being hit, Torres heard someone in the group yell (among other things), "take the bike." No evidence was presented that anyone there had a claim of right to the bicycle or an intent to take it only temporarily. (In re Albert A., supra, 47 Cal.App.4th at p. 1008.)
Under all the circumstances, the evidence supplied a close enough connection between the target crime aided and abetted (battery) and the offense next committed (robbery), to support the instruction that was given about the natural and probable consequences of the target offense. (Prettyman, supra, 14 Cal.4th 248, 269; People v. Montes (1999) 74 Cal.App.4th 1050, 1055; Nguyen, supra, 21 Cal.App.4th 518, 528-531.) There was no requirement that the collateral act of robbery be specifically planned or agreed upon by Cruz. (Ibid. at p. 531.) The jury was properly instructed in this manner about aider and abettor liability.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
AARON, J.