Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VCF170009A of Tulare County. Gerald F. Sevier, Judge.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Juan Alonso Curiel appeals from a judgment of conviction of the first-degree special circumstance murder of Randall Shaw, shooting at an occupied motor vehicle, and five counts of attempted willful, deliberate, and premeditated murder. He argues an instructional issue, a bifurcation issue, and an insufficiency of the evidence issue. We affirm the judgment.
FACTUAL BACKGROUND
At or about 1:00 am. on May 21, 2006, someone fired shots at Curiel’s green SUV at an intersection in Dinuba, striking his passenger and fellow Sureño Luis Ramirez. Curiel told police some Norteños had come after him. Ramirez told police someone wearing a red shirt had shot him. Sureños often wear blue clothing, and Norteños often wear red clothing.
At trial, witnesses refer interchangeably to Sureños and southerners and to Norteños, Norte, northerners, and north side (Spanish and English names, respectively, for the rival gangs). Here, for consistency, references are solely to the Spanish names.
On May 27, 2006, Shaw drove five of his skateboarder friends, none of whom was a gang member, in his pickup to a quinceañera in Sultana where Curiel and Sureño Miguel Carisalas, who wore a semiautomatic gun at his waist, were among the guests. After a lot of people mad-dogged them, Shaw and his friends – Alexander Barrientoz, Daniel Castillo, Henry Castillo, Roger Castillo, and Joseph Mateus – left. Outside, witnesses heard Daniel Castillo yell “Norte” and saw him put four fingers of one hand up – short for “14” (a reference to the 14th letter of the alphabet), which stands for the “N” in Norteño – before Shaw drove away. Curiel and Carisalas sped off in Curiel’s green SUV.
The record refers to the last names of the three brothers in Shaw’s group as “Castilla,” “Castillo,” and “Costilla.” Here, for consistency, references are solely to the “Castillo” spelling.
Two to three miles away from the quinceañera, as Shaw slowed down for a stop sign, gunfire from a green SUV hit his pickup. Shaw accelerated, but the green SUV followed, and after more gunfire hit his pickup he lost control and crashed. Shaw died of a gunshot wound to the face and blunt force trauma from the crash. Daniel Castillo suffered a fractured skull and a broken ankle from the crash. Shaw’s truck showed seven bullet strikes, all on the left side.
PROCEDURAL BACKGROUND
A jury found Curiel guilty of one count each of first-degree murder (Pen. Code, § 187, subd. (a)) and shooting at an occupied motor vehicle (§ 246) and five counts of attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664). The jury found true as to each count a criminal-street-gang allegation (§ 186.22, subd. (b)), a personal-and-intentional discharge-of-a-firearm-by-a-principal allegation (§ 12022.53, subds. (c), (e)(1)), and a personal-and-intentional discharge-of-a-firearm-by-a-principal-causing-great-bodily-injury-or-death allegation (§ 12022.53, subds. (d), (e)(1)) and found true as to the first-degree murder a discharge-of-a-firearm-from-a-vehicle special-circumstance allegation (§ 190.2, subd. (a)(21) and a criminal-street-gang special-circumstance allegation (§ 190.2, subd. (a)(22)). The trial sentenced him to an indeterminate term of life without possibility of parole on the murder, to a concurrent 25-to-life term on the personal-and-intentional discharge-of-a-firearm-by-a-principal-causing-great-bodily-injury-or-death enhancement, and to a concurrent 25-to-life term on each of the attempted willful, deliberate, and premeditated murder counts.
Later statutory references are to the Penal Code except where otherwise noted.
Carisalas was charged in the same information as Curiel, but the trial court granted both defense motions to sever.
ISSUES ON APPEAL
Curiel argues that (1) the trial court precluded jury consideration of second-degree murder as a lesser included offense by improperly instructing the jury that specific intent is a necessary element of second-degree murder including implied malice second-degree murder, (2) the trial court tacitly invited the jury to return verdicts reflecting a higher degree of culpability by improperly denying his motion to bifurcate the criminal-street-gang allegations, and (3) an insufficiency of the evidence of his knowledge of the presence of five people in the pickup other than Shaw requires the reversal of all five attempted willful, deliberate, and premeditated murder counts.
DISCUSSION
1. Instruction on Second-Degree Murder
Curiel argues that the trial court precluded jury consideration of second-degree murder as a lesser included offense by improperly instructing the jury that specific intent is a necessary element of second-degree murder including implied malice second-degree murder. The Attorney General argues the contrary.
The trial court instructed Curiel’s jury as follows with CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together):
“The crimes and other allegations charged in this case require proof of the union, or joint operation, of act and wrongful intent.
“The following crimes and allegations require general criminal intent:
“– brandishing a firearm, an element of the lesser offense of involuntary manslaughter
“– assault with a firearm (the lesser offense of shooting at an occupied motor vehicle [¶]
“[–] assault (a lesser offense to assault with a firearm).
“For you to find a person guilty of these crimes, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he intentionally does a prohibited act on purpose, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime.
“The following crimes and allegations require a specific intent and/or mental state:
“– Murder as charged in Count 1 (Both Murder 1 and Murder 2)
“– Second degree felony murder
“– Voluntary Manslaughter and Involuntary manslaughter
“– Attempted Murder as charged in Counts 3 through 7
“– Attempted willful, deliberate and premeditated murder
“– Attempted Voluntary Manslaughter
“– The gang allegations enhancements and the firearm allegations
“– The special circumstance allegations: Murder by a street gang member and Murder by discharge of a firearm from a motor vehicle
“– Shooting at an occupied motor vehicle
“– Criminal liability as an aider and abettor
“For you to find a person guilty of these crimes or to find the allegations true, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime or allegation. Some may require both a mental state and a specific intent. Some may not require a specific intent but require a mental state. Some may not require a specific intent but do require a mental state.”
Apart from instructing Curiel’s jury on the theory of second-degree felony murder, the trial court instructed on the theory of malice aforethought murder with implied malice by modifying CALCRIM No. 520 (Murder with Malice Aforethought), in relevant part, as follows:
“The defendant is charged in Count 1 with murder. [¶] … [¶]
“The defendant may be guilty of murder even if another person did the act that resulted in the death. If another person did the act resulting in death, that person is called the perpetrator.
“Murder with Malice Aforethought[.] To prove that the defendant is guilty of the crime of murder with malice aforethought, the People must prove that:
“1. The perpetrator intentionally committed an act that caused the death of another person;
“2. When the perpetrator acted, he had a state of mind called malice aforethought;
“3. Prior to the act causing death, the defendant was aware of the perpetrator’s intent to commit the act that caused the death;
“4. Prior to the act causing death, the defendant aided and abetted the perpetrator in the commission of the act that caused death;
“5. Prior to the act causing death, the defendant intended to aid and abet the perpetrator in the commission of the act that caused death; [¶] AND,
“6. [] In aiding and abetting the commission of the act that caused death, the defendant intended to cause death, OR, the natural consequences of the act were dangerous to human life, and, the defendant in aiding and abetting the commission of the act that caused death was aware the natural consequences of the act were dangerous to human life.
“There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
“Express malice is when there is manifested an intention to unlawfully kill a human being.
“Implied malice is when
“1. The killing resulted from an intentional act;
“2. The natural consequences of the act were dangerous to human life;
“3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life.
“Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time. [¶] … [¶]
“As to either theory of murder, the defendant must have aided and abetted the perpetrator in the commission of the act causing death before or at the time of the act causing death. To decide whether the defendant aided and abetted a crime, please refer to the separate instructions on aiding and abetting. To decide whether the crime of shooting from [sic] an occupied motor vehicle was committed, please refer to the instruction relating to that crime found elsewhere in these instructions.
“An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. 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.
“You may not find the defendant guilty of murder unless you all agree that the People have proved the defendant committed murder under at least one of these theories. You do not all have to agree the People have proven murder on the same theory [to] find the defendant guilty of murder. However, if you unanimously find the defendant guilty of murder but do not all agree that the People have proven defendant guilty of Murder with Malice Aforethought, you must find him not guilty of murder of the first degree.”
With commendable candor, the Attorney General states, “To the extent the instructions stated that implied malice murder requires specific intent, they were erroneous.” We agree. (People v. Rogers (2006) 39 Cal.4th 826, 872-873.) The question before us, then, is whether the error was prejudicial.
The record answers that question in the negative. The trial court instructed the jury with CALCRIM No. 735 (Special Circumstances: Discharge from Vehicle), which states, in relevant part, as follows:
“The defendant is charged with the special circumstance of committing murder by shooting a firearm from a motor vehicle in violation of Penal Code section 190.2(a)(21).
“To prove that this special circumstance is true, the People must prove that:
“1. Miguel Carisalas shot a firearm from a motor vehicle, killing Randall Shaw;
“2. Miguel Carisalas intentionally shot at a person who was outside the perpetrator’s motor vehicle; [¶] AND,
“3. Defendant, not the actual killer, and with the intent to kill, aided and abetted Miguel Carisalas in the killing of Randall Shaw.”
So instructed, the jury found the discharge-of-a-firearm-from-a-vehicle special-circumstance allegation true as to the first-degree murder, necessarily resolving adversely to Curiel the factual issue the instructional error omitted about whether he had specific intent. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 97; People v. Adams (2004) 124 Cal.App.4th 1486, 1495.) On a record like that, a conviction of the charged offense is reversible only if, “after an examination of the entire cause, including the evidence,” it appears “reasonably probable” that the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Martinez (2007) 154 Cal.App.4th 314, 337, citing People v. Watson (1956) 46 Cal.2d 818, 836.) That is not the state of the record here. The judgment of conviction of first-degree murder stands.
2. Denial of Motion to Bifurcate Criminal-Street-Gang Allegations
Curiel argues that the trial court tacitly invited the jury to return verdicts reflecting a higher degree of culpability by improperly denying his motion to bifurcate the criminal-street-gang allegations. The Attorney General argues the contrary.
Before trial, Curiel made a motion in limine to bifurcate the section 186.22 criminal-street-gang allegations from the underlying offenses. He noted that “the victims are not gangbangers” but “basically skateboarders.” Additionally, he observed, “No one was wearing gang clothing.” He denied “hearing anyone yell Norte or flash the number 4” and pointed out that Daniel Castillo, whom the prosecution intended to show yelled it out, “denies it.” In short, “The prosecution can prove that the shooter is a gang member without the need of expert gang testimony and all the gang information.”
Opposing the motion, the prosecutor argued that there was no basis for bifurcation since the criminal-street-gang allegations were relevant to motive. “In this case,” he noted, “there are witnesses that will testify [a] gang slur was yelled out towards the defendant and his partner who is also a southern gang member, Miguel Carisalas, who is actually the shooter.” He added, “As the victim sped off, the defendant along with Miguel Carisalas followed them for several miles. The defendant put his associate fellow gang member in a position to continue shooting at the victims.” Finally, he emphasized, Curiel “admitted he chased down the victims with his fellow gang member and allowed him to shoot.”
The trial court observed there were “several admissible bases” for admitting the evidence pursuant to Evidence Code section 1101. Acknowledging that the evidence, even though prejudicial, was “highly probative potentially, depending upon how the trier of fact sees it,” the trial court engaged in the weighing process required by statute and found the evidence more probative than prejudicial. (Evid. Code, § 352.)
In relevant part, the statute provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident …) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
The trial court has broad discretion to decide whether to bifurcate the section 186.22 criminal-street-gang allegations from the underlying offenses even if some of the evidence admissible for proof of the criminal-street-gang allegations is inadmissible for proof of the underlying crimes. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051 (Hernandez).) As Hernandez emphasized, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation – including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Id. at p. 1049.)
Seeking to distinguish Hernandez, Curiel argues that “there was a lack of evidence that [he] knew Carisalas or ever associated with him.” He notes that he and Carisalas “arrived separately at the quinceañera” and that there was “no other evidence that they had even met each other prior to the shooting. Without the evidence of common gang membership, the prosecution would have had a heavy burden to show that [he] knew of Carisalas’[s] state of mind; that heavy burden was shifted to the single factor of common gang membership. With the atrocious reputation that criminal street gangs have in the community, the jury was invited to find all the mental elements of the murder and attempted murder counts and their enhancements through the factor of group association alone, and not on relevant evidence.”
We disagree. “Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself – for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged – a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.) The analogy between bifurcation and severance is imperfect, but even so “the trial court’s discretion to deny bifurcation of a charged gang enhancement is similarly broader than its discretion to admit gang evidence when the gang enhancement is not charged.” (Ibid.)
Here, the evidence admissible for proof of the criminal-street-gang allegations included a gang expert’s testimony that murder, attempted murder, shooting at occupied vehicles, and assault with firearms were among the primary activities of the Sureños and that the charged crimes would have benefited the gang by showing that taunting the gang, as Daniel Castillo did at the quinceañera, is disrespect that the gang will not tolerate and that will bring retaliation – even the ultimate crime of homicide – to instill fear of the gang in the community. Likewise, the evidence was relevant to the issue of Curiel’s motive to pursue Shaw’s pickup to let Carisalas shoot at the people who taunted the gang, to show his loyalty to the gang and to a fellow gang member, and to raise his own status in the gang.
The trial court carefully instructed the jury with CALCRIM No. 1403 (Limited Purpose of Evidence of Gang Activity):
“You may consider evidence of gang activity only for the limited purpose of deciding whether:
“The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime[s] and enhancements and special circumstance allegations charged; [¶] OR
“The defendant had a motive to commit the crimes charged.
“You may also consider evidence of gang activity for the limited purpose of evaluating the credibility or believability of a witness [¶] AND [¶] considering the facts and information relied on by an expert witness in reaching his opinion.
“You may not consider this evidence for0 any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
The ruling denying Curiel’s motion was well within the trial court’s broad discretion to decide whether to bifurcate the criminal-street-gang allegations from the underlying offenses.
3. Evidence of Attempted Willful, Deliberate, and Premeditated Murder
Curiel argues that an insufficiency of the evidence of his knowledge of the presence of five people in the pickup other than Shaw requires the reversal of all five attempted willful, deliberate, and premeditated murder counts. The Attorney General argues the contrary.
Curiel argues that the record “lacks evidence on how visible” the five other people in the pickup were and that a perpetrator’s knowledge of a victim’s presence is necessary to support the requisite finding of specific intent to kill. We agree, of course, that specific intent to kill is an element of attempted willful, deliberate, and premeditated murder. (People v. Smith (2005) 37 Cal.4th 733, 739.) We disagree with the other aspects of his argument, however.
On a claim of insufficient evidence, “we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, limited on another ground by People v. Rundle (2008) 43 Cal.4th 76, 151.) “Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.)
With commendable candor, Curiel acknowledges that “Carisalas fired multiple shots from the passenger seat of [Curiel’s SUV],” that there were “seven bullet strikes to the left side of [Shaw’s] pickup,” that one bullet struck Shaw “in the face, killing him,” and that Benjamin Eli Alvarez testified from the point of view of the perpetrators about “the circumstances leading up to the shootings.” Alvarez testified that he was with Curiel and Carisalas at the quinceañera in Sultana and that after he heard someone from a group of “at least five” skateboarders at the quinceañera yell out “Norte” in Carisalas’s direction he saw Carisalas speed away with Curiel in Curiel’s SUV. He testified that at the party in Orosi after the quinceañera in Sultana Carisalas told him “they had shot at some people” because “they were Norteños” and Curiel told him “they had switched some words with some other people” – not with “one person” but with “a group of people.” He testified that Curiel told him he had driven after a group of some skateboarders because they had yelled out “Norte” and that Carisalas told him he had gotten angry and “had shot at some busters” (a derogatory Sureño word for Norteños) after hearing the word “Norte.”
The record shows that Curiel and Carisalas intentionally created a “kill zone” to kill Shaw, the primary victim, and to kill everyone else in the pickup (with the six bullets that did not hit Shaw or in the crash that predictably followed the killing of Shaw). The doctrine of transferred intent is inapplicable to attempted willful, deliberate, and premeditated murder, but a person who shoots at a group of people can still be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. (People v. Bland (2002) 28 Cal.4th 313, 329 (Bland).) So “although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the ‘kill zone.’” (Id. at pp. 329-330.)
“‘The intent is concurrent,” Bland explained, “when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a ‘kill zone’ to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death. The defendant’s intent need not be transferred from A to B, because although the defendant’s goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.’” (Bland, supra, 28 Cal.4th at p. 330, quoting Ford v. State (1993) 330 Md. 682 [625 A.2d 984, 1000-1001, fn. omitted].)
Congruently, the trial court instructed Curiel’s jury as follows with CALJIC No. 8.66.1 (Attempted Murder – Concurrent Intent):
“A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the ‘kill zone.’ The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity.
“Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a ‘kill zone’ zone of risk is an issue to be decided by you.”
Here, the evidence and the charge to the jury alike show that a reasonable trier of fact could find Curiel guilty beyond a reasonable doubt of all five counts of attempted willful, deliberate, and premeditated murder. His insufficiency of the evidence argument simply asks us to reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Cornell, J.