Opinion
No. B073164
9-29-1994
Previously published at 28 Cal.App.4th 1183, 33 Cal.App.4th 916, 38 Cal.App.4th 1052 28 Cal.App.4th 1183, 33 Cal.App.4th 916, 38 Cal.App.4th 1052 The PEOPLE, Plaintiff and Respondent, v. Conrad ESTRADA et al., Defendants and Appellants.
Shulman, Shulman & Siegel, Corinne S. Shulman, Hydesville and Robert E. Boyce, San Diego, for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., and Scott Wm. Davenport, Deputy Atty. Gen., for plaintiff and respondent.
The PEOPLE, Plaintiff and Respondent,
v.
Conrad ESTRADA et al., Defendants and Appellants.
Sept. 29, 1994.
Certified for Partial Publication
Review Granted Jan. 5, 1995.
Shulman, Shulman & Siegel, Corinne S. Shulman, Hydesville and Robert E. Boyce, San Diego, for defendants and appellants.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., and Scott Wm. Davenport, Deputy Atty. Gen., for plaintiff and respondent.
ARMSTRONG, Associate Justice.
Conrad Estrada and Michael Siqueros appeal their convictions, by jury, of first degree murder, robbery and burglary (Pen.Code, §§ 187, 211 and 459, respectively), as well as the special circumstance findings that the murder was committed during the commission of robbery and burglary (Pen.Code, § 190.2, subd. (a)(17)). Both defendants were sentenced to life without the possibility of parole, plus sentences for a sum of years on the findings of special allegations regarding prior felony convictions (Pen.Code, §§ 667, subd. (a), 1203, subd. (e)(4)) and, in the case of Estrada, the use of a knife (Pen.Code, § 12022, subd. (b)).
FACTS
Viewed in accordance with the usual rules of appellate review (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110), the evidence established that defendants, who did not know each other prior to this incident, met each other on the afternoon of October 7, 1991, at a mutual friend's house in El Monte. Siqueros asked Estrada for a ride home to Whittier. On their way, in the late afternoon, Estrada drove to the residence of Rudolph Jaime in El Monte. Defendant Estrada was well-acquainted with Jaime, as Jaime's former girlfriend, Ophelia Ramirez, was the mother of Estrada's girlfriend, Theresa Ramirez. Ophelia lived at Jaime's residence for some time in 1991, and Estrada was a frequent visitor. In approximately August of 1991, Ophelia moved out of Jaime's residence, but left some items of personal property, including a portable television set, behind.
On October 7, 1991, Mrs. Galardo, observing from the residence next door, saw the two men talking to Jaime in the front yard, then walk to their truck while Jaime locked the front gate and returned to his house. The men sat in the truck for 5 to 10 minutes, then exited the truck, jumped over the fence, and entered the front door. Mrs. Galardo then heard a lot of noise, which included the sound of furniture being thrown around, for approximately 10 minutes. During that period, either one or both men left the house, one of whom carried a television set. After putting the T.V. set down in front of the house, he (or they) reentered the house. Still hearing sounds of fighting, Mrs. Galardo called the police.
Defendants were still in Jaime's home when the police arrived. After initially evading arrest (Siqueros was brandishing a rifle when the police first attempted to arrest him), both men were taken into custody. The officers observed blood on Siqueros's hands and on Estrada's face, pants and body, and also noted that Estrada's hands were bleeding.
The officers entered the house and found Jaime lying on his back with major injuries, including cuts and stab wounds to the chest, neck and head. Jaime was able to tell the officers that two people were involved, and that he did not know his assailants.
Estrada was transported to Arcadia Methodist Hospital for treatment of cuts he had sustained on his chest, hands and face. Three crumpled dollar bills were recovered from Estrada's left pants pocket, and nine folded dollar bills with blood on them were removed from his right pants pocket.
Officer Carlson of the El Monte Police Department transported Siqueros to the police station. During transport, Siqueros asked him what the charges were, to which Carlson responded attempted murder and burglary. Siqueros began calling Carlson derogatory names, cursing, and questioning his heritage. Siqueros then stated, "I am the one you want," and "Yeah, I am the mother fucking one you want asshole," and "Wait until I get out of prison. I am going to kill your mother fucking ass." Soon thereafter, Siqueros stated to Carlson, "You won't find any fucking weapon on me. I haven't got a mother fucking thing on me."
An expert who performed an analysis on the blood recovered at the scene testified that the victim's blood was found on a cardboard box at the house, the recovered knife, Siqueros's boxer shorts and Estrada's pants. Estrada's blood was found on the same cardboard box, the bathroom window, and the living room wall. Many other items at the scene were sources of blood samples, including a golf shirt, the bedroom wall, a pair of scissors, a rifle case, the money recovered from Estrada's pocket, Siqueros's pants, a rifle and a fork. However, due to a similarity in the blood types of Jaime and Estrada, the serologist was unable to identify the source of these blood samples. However, none of the blood samples recovered matched Siqueros's blood type.
The coroner, Dr. Carpenter, determined that Jaime died from any one of four fatal stab wounds to his body. He suffered 7 to 10 stab wounds in his body, and 20 to 30 lacerations and incisions in the facial area. Carpenter also testified that the wounds to Jaime's face were consistent with the use of a fork, and that the wound pattern suggested the victim was pinned down and immobile when the lacerations were made to his face. Finally, Carpenter testified that the knife recovered from the scene did not have a hilt, which could explain how a person wielding the weapon could slice his own hand, since nothing would prevent his hand from slipping down onto the blade. Siqueros's defense
Dr. Root, a pathologist, testified that the cuts to the victim's face were not consistent with a fork, but rather with a knife.
Officer Reneer testified that in the early morning hours of October 7, 1991, approximately 18 hours before the murder, he responded to a disturbance at a local bar. The bar owner, who was Siqueros's aunt, told him that there had been a fight inside. Siqueros's aunt told Reneer that she had only seen her nephew on two occasions: Once when he was four years old and again on the occasion of the bar fight.
Siqueros testified that on October 7, 1991, he had met Estrada and the two had some beers. He asked Estrada for a ride home. On the way, they stopped at Jaime's house, whom Siqueros did not know, and had a few beers.
Siqueros moved the television set because Estrada had asked him to help move some of Ophelia's things. When he returned to the house, Jaime and Estrada had started arguing. Siqueros went into the kitchen to get a beer. He then heard noises which sounded like someone punching someone. When he returned, he saw a body lying on the ground "full of blood."
Siqueros picked up the rifle because he was scared. Estrada came into the kitchen and was a "bloody mess." When he surrendered to the police, he heard Estrada yelling, "Leave him alone. He didn't do nothing." Estrada's Defense
Estrada testified that on October 7, 1991, he was supposed to make a delivery for his parents' party rental business, but instead went to a friend's house where he met Siqueros. The two drank beer until late in the afternoon. Siqueros asked for a ride home and Estrada agreed. On the way, Estrada decided to stop at Jaime's house to have a few beers.
After drinking a few beers with Jaime, defendants returned to Estrada's truck. Estrada remembered that Jaime had asked him to get some of Ophelia's things out of the house. Siqueros agreed to help him move those items. The two men jumped over the fence and knocked on the front door. Jaime told them to come in. Jaime said he still wanted them to take Ophelia's things. Siqueros then took the television to the truck.
While Siqueros was outside, Jaime began pressing Estrada about who Ophelia was with. The two began to argue, and Siqueros went to the kitchen to get a beer. Jaime and Estrada pushed, and then hit, each other, which led to a fight. Estrada knocked Jaime down. Jaime got up with a kitchen knife, which he swung at Estrada. Estrada grabbed the knife, which cut his hand.
Jaime grabbed Estrada by the neck. Estrada told him to let go, but Jaime would not. Estrada stabbed Jaime in the stomach. He stabbed the victim numerous times, and continued stabbing Jaime after he fell to the floor.
Siqueros was not involved in the altercation with Jaime.
At the hospital, Estrada asked an officer, "Why did he [meaning Jaime] do that?"
Estrada acknowledged on direct examination that he had been convicted of receiving stolen property, possession of narcotics, spousal abuse and participating in a prison riot. Rebuttal
Officer Carlson, who was present when Siqueros surrendered, never heard Estrada say, "Leave him alone. He didn't do anything."
Officer Castruita testified that Estrada stated, "How is Rudy [Jaime]? How is Rudy? Why did he have to do that to him. How is Rudy?" Contentions
On appeal, the defendants assign the following errors at trial: (1) Estrada's counsel rendered ineffective assistance when he elicited Estrada's admission of prior criminal convictions which the trial court had ruled inadmissible; (2) Defendants were deprived of due process of law because the jury was instructed that conscious possession of stolen property plus slight corroboration is sufficient to infer guilt of burglary or robbery, the predicate findings to felony murder; (3) The trial court erroneously instructed the jury to first consider the first degree murder charge, and, if there were no agreement, to then consider the lesser murder and manslaughter instructions; (4) The court responded incorrectly to a jury query when it advised the jury that Siqueros was guilty of first degree murder if the killing occurred during the temporal span of the robbery; (5) The trial court failed to properly instruct the jury in the special circumstance allegation by failing to instruct, sua sponte, on the definition of "reckless indifference to human life;" (6) CALJIC No. 2.90 is constitutionally defective; and (7) The cumulative effect of these errors requires reversal of the convictions.
DISCUSSION
5. Instruction on Accomplice Liability for Felony Murder Special Circumstances
Defendant Siqueros challenges the adequacy of the jury instruction concerning the felony murder special circumstance. That instruction provided that a defendant who is not the actual killer and does not aid and abet the killing may be found liable for the special circumstance of felony murder if he acted "with reckless indifference to human life and as a major participant aided, abetted, counseled, commanded, induced, solicited, requested or assisted in the commission of the crime of Penal Code section 190[.2], subdivision (a), subdivision (17)."
Siqueros's challenge to the foregoing instruction is two-fold: First, he maintains that the trial court had a sua sponte duty to define the term "reckless indifference to human life." Second, he contends that the court's failure to specify "the crime of Penal Code section 190[.2], subdivision (a), subdivision (17)," left the jury to speculate as to that matter.
Siqueros finds support for his first contention in People v. Purcell (1993) 18 Cal.App.4th 65, 22 Cal.Rptr.2d 242. There, the Court of Appeal held that the phrase "reckless indifference to human life" as used in Penal Code section 190.2, subdivision (d) and included in CALJIC No. 8.80.1 has a technical meaning peculiar to the law such that the trial court had a sua sponte duty to define that phrase for the jury. (Id. at p. 74, 22 Cal.Rptr.2d 242.) The court based this holding on its conclusion that, without a clarifying instruction, a jury might apply an ordinary negligence standard in finding a special circumstance allegation to be true. This would be inappropriate, since the United States Supreme Court in Tison v. Arizona (1987) 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 determined that a more stringent standard applied: The Tison Court approved of the application of the death penalty to accomplices who did not participate in the killings, so long as the defendants "subjectively appreciated that their acts were likely to result in the taking of innocent life." (Tison v. Arizona, supra, 481 U.S. at p. 152, 107 S.Ct. at p. 1685.) Thus, the Court of Appeal in Purcell concluded that the phrase "reckless indifference to human life" must be defined, sua sponte by the court, to include the element of subjective appreciation of the possibly lethal consequences of one's actions.
With all due respect to the Purcell court, we disagree with the conclusion that a sua sponte instruction regarding the meaning of "reckless indifference to human life" was mandated by Tison v. Arizona, supra. In Tison, the defendant brothers, along with other members of their family, planned and effected the escape of their father from prison where he was serving a life sentence for having killed a guard during a previous escape. Defendants entered the prison with a chest filled with guns, armed their father and another convicted murderer, later helped to abduct, detain and rob a family of four, and watched their father and the other convict murder the members of that family with shotguns. They were tried and convicted for capital murder, based on Arizona's felony murder law providing that a killing occurring during the perpetration of a robbery or kidnapping is capital murder (Ariz.Rev.Stat.Ann. § 13-452 (1956) (repealed 1978)), and that each participant in the robbery or kidnapping is legally responsible for the acts of his accomplices. (Ariz.Rev.Stat.Ann. § 13-139 (1956) (repealed 1978).) In attacking their death sentences, the defendants argued that those sentences constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, since they neither intended to kill, nor actually killed, any victim. This challenge was premised on the Supreme Court's opinion in Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, where the Court overturned a death sentence in a felony murder case because it was disproportionate to the crime of felony murder under the circumstances of that case.
The Tison Court began its analysis with a review of its decision in Enmund. In the latter case, the defendant Enmund was the driver of the "getaway" car in an armed robbery of a dwelling. Enmund's accomplices killed the occupants of the house, an elderly couple, when they resisted the robbers. Enmund was convicted of felony murder and sentenced to death. The Supreme Court held that Enmund's participation in the murders was so tangential that it could not justify a sentence of death. The Court reasoned: "[A] criminal sentence must be directly related to the personal culpability of the criminal offender. While the States generally have wide discretion in deciding how much retribution to exact in a given case, the death penalty, 'unique in its severity and irrevocability,' requires the State to inquire into the relevant facets of 'the character and record of the individual offender.' Thus, in Enmund's case, 'the focus [had to] be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on "individualized consideration as a constitutional requirement in imposing the death sentence." ' Enmund v. Florida, supra, at 798 (quoting Lockett v. Ohio, 438 U.S. 586, 605 [98 S.Ct. 2954, 57 L.Ed.2d 973] (1978)) (emphasis in original). Since Enmund's own participation in the felony murder was so attenuated and since there was no proof that Enmund had any culpable mental state, the death penalty was excessive retribution for his crimes." (Tison v. Arizona, supra, 481 U.S. at p. 149, 107 S.Ct. at p. 1683-84 (some internal citations omitted).)
The question before the Supreme Court in Tison was whether a sentence of death was disproportionate to the crime of felony murder when the defendant did not kill or intend to kill the victim. In considering this question, the Court reiterated that "[a] critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime." (481 U.S. at p. 156, 107 S.Ct. at p. 1687.) While the death penalty is clearly appropriate in the case of a defendant who intended the killing, Enmund makes clear that it is disproportionate to the crime when imposed on a minor participant in the underlying felony who is not shown to have any culpable mental state. (Ibid.)
In Tison, the defendants were neither intentional killers nor minor actors in the criminal enterprise. Thus, the Court had to decide whether one convicted of felony murder, who, while not intending to kill, acted with total disregard for the consequences of his actions in arming two convicted murderers and assisting in their escape from prison, had a culpable mental state sufficient to justify imposition of the death penalty. As the Court stated, "some nonintentional murderers may be among the most dangerous and inhumane of all--the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an 'intent to kill.' " (481 U.S. at p. 157, 107 S.Ct. at p. 1688.)
Based upon the foregoing analysis, the Supreme Court in Tison held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." (481 U.S. at p. 158, 107 S.Ct. at p. 1688.) In June 1990, the California electorate adopted Proposition 115, which amended Penal Code section 190.2 to reflect the holding of Tison, as follows: (d) Notwithstanding subdivision (c), every person not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) [the felony murder special circumstance statute], which felony results in the death of some person or persons, who is found guilty of murder in the first degree therefor, shall suffer death or confinement in state prison for life without the possibility of parole, in any case in which a special circumstance enumerated in paragraph (17) of subdivision (a) of this section has been found to be true under Section 190.4." (Pen.Code, § 190.2, subd. (d).)
As previously noted, the Court of Appeal in People v. Purcell concluded that Tison v. Arizona requires a trial court to instruct the jury, sua sponte, in the meaning of the phrase "reckless indifference to human life." We find no such mandate in Tison. Rather, Tison, as well as Enmund v. Florida, which the Tison Court interpreted and applied, are concerned solely with whether imposition of the death penalty on an accomplice to a felony murder who neither killed nor intended to kill the victim "violates the Eighth and Fourteenth Amendments' proscription ' "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged." ' " (Tison v. Arizona, supra, 481 U.S. at p. 148, 107 S.Ct. at p. 1683; citations omitted.) Thus, those decisions were premised on the fact that the defendant was facing the ultimate penalty, " 'unique in its severity and irrevocability.' " (Id. at p. 149, 107 S.Ct. at p. 1683, quoting Gregg v. Georgia (1976) 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859. Such is not the case here: Although Siqueros was charged with a special circumstance which made him eligible for the death penalty, the People chose not to seek a sentence of death in this case. Thus, the proportionality arguments with which the Court was concerned in Enmund and Tison are simply not present here. Indeed, the Court in Tison acknowledged that "States generally have wide discretion in deciding how much retribution to exact in a given case, ..." (Tison, supra, 481 U.S. at p. 149, 107 S.Ct. at p. 1683.) And Siqueros has never argued that his sentence to life in prison without possibility of parole violated the constitutional prohibition against cruel and unusual punishment because it was disproportionate to the crimes he was convicted of committing. We therefore conclude that there is no constitutional requirement that a jury find that an aider and abettor to a felony murder act with reckless indifference to human life before he may be sentenced to life without possibility of parole. Thus, Tison is not dispositive of the issue before us.
While we conclude that the Constitution does not mandate the result reached in Purcell, there is a statutory requirement, contained in Penal Code section 190.2, subdivision (d), that before a felony murder special circumstance may be found true, the jury must find either that the defendant was the actual killer, or that he intended to kill, or that he was a major participant in the underlying felony and acted with reckless indifference to human life. In the face of an argument that the trial court erred by failing to define, sua sponte, the phrase "reckless indifference to human life," we look to the decisional law of California.
The California Supreme Court recently considered a similar argument in People v. Rowland (1992) 4 Cal.4th 238, 14 Cal.Rptr.2d 377, 841 P.2d 897. The Court there stated that when "a phrase 'is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.' [Citation.]" (Id. at pp. 270-271, 14 Cal.Rptr.2d 377, 841 P.2d 897. Unlike the Purcell court, we do not believe that the phrase "reckless indifference to human life" as it appears in CALJIC No. 8.80.1 is used in a technical sense peculiar to the law. To the contrary, we believe that the phrase has a common meaning understood by the average juror, that is, a conscious disregard for the possibly fatal consequences of one's actions. The California courts have declined to impose a sua sponte duty on the trial court to define phrases which are readily understandable to the average juror. (See, e.g., People v. Hamilton (1989) 48 Cal.3d 1142, 1178, 259 Cal.Rptr. 701, 774 P.2d 730 ["financial gain"]; People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366 ["force" or "fear"]; People v. Chavez (1951) 37 Cal.2d 656, 668, 234 P.2d 632 ["perpetrate"]; People v. Morse (1992) 2 Cal.App.4th 620, 643, 3 Cal.Rptr.2d 343 ["natural and continuous"]; People v. Pitmon (1985) 170 Cal.App.3d 38, 51-52, 216 Cal.Rptr. 221 ["duress"]; People v. Trapps (1984) 158 Cal.App.3d 265, 268-269, 204 Cal.Rptr. 541 ["reasonable" and "good faith"]; People v. Brucker (1983) 148 Cal.App.3d 230, 238-239, 195 Cal.Rptr. 808 ["willful"]; People v. Stewart (1979) 89 Cal.App.3d 992, 999, 153 Cal.Rptr. 242 ["amenable to medical treatment"]; People v. Jones (1971) 19 Cal.App.3d 437, 446-447, 96 Cal.Rptr. 795 ["acting together," "lawful custody," "urging," and "clear and present danger"]; People v. Watson (1971) 15 Cal.App.3d 28, 39, 92 Cal.Rptr. 860 ["creditor-debtor relationship"]; People v. Hawkins (1968) 268 Cal.App.2d 99, 106, 73 Cal.Rptr. 748 ["unlawful intent," "criminal intent," and "felonious intent"]; People v. Robinson (1968) 266 Cal.App.2d 261, 268, 72 Cal.Rptr. 33 ["escape"]; People v. Sanderson (1961) 190 Cal.App.2d 720, 722-723, 12 Cal.Rptr. 69 ["knowingly"]; People v. Shannon (1956) 147 Cal.App.2d 300, 305, 305 P.2d 101 ["impeach"].) We note as well that Tison itself gives no indication that the phrase "reckless indifference to human life" is confusing or requires further elucidation in order to be understood by the jury. Consequently, we hold that the trial court had no duty to instruct the jury on the definition of the term "reckless indifference to human life" in the absence of a request therefor.
Finally, as noted, the jury was instructed that a defendant who is not the actual killer may be found liable for the special circumstance of felony-murder if he acted "with reckless indifferenceto human life and as a major participant aided, abetted, counseled, commanded, induced, solicited, requested or assisted in the commission of the crime of Penal Code section 190[.2], subdivision (a), subdivision (17)." Siqueros argues that the trial court's failure to identify "the crime of Penal Code section 190[.2], subdivision (a), subdivision (17)" as robbery or burglary left the jury to speculate as to the referenced crime. Thus, Siqueros theorizes that "the jury may have decided it necessary to find only that [he] acted with 'reckless indifference to human life' at some time and was a major participant in something, but not necessarily while aiding and abetting a robbery or a burglary." This argument lacks merit.
Siqueros was charged with and tried for first degree felony murder based on his participation in the burglary and robbery of victim Jaime, which resulted in Jaime's death. Thus, the only crimes of which there was evidence and to which the Penal Code section could possibly refer was either burglary or robbery. Any error was therefore harmless. (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)
6. & 7.
DISPOSITION
The judgments are affirmed.
TURNER, P.J., and GODOY PEREZ, J., concur. --------------- * Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 1 through 4 and parts 6 and 7 of the Discussion. 1 While the witness could not remember at trial whether the men had knocked on the front door, she had so indicated in her initial statement to the police. 2 Although both defendants join in the other's arguments, contentions four and five apply only to Siqueros, since Estrada admits that he was Jaime's actual killer. ** See footnote *, ante. 6 In his opening brief, Siqueros argues that the jury was not instructed that "An accomplice in a felony murder special circumstance must be found to be a major participant in the underlying felony and display reckless indifference to human life." However, respondent established that CALJIC No. 8.80.1, which includes the circumstances in which an accomplice who is not the actual killer may be found liable for a felony murder special circumstance, was given by the court. 7 CALJIC No. 8.80.1 was created in 1990 to incorporate the foregoing change in statutory language. As indicated above, the jury was instructed in the language of CALJIC No. 8.80.1. 8 While it is true that the jury could have concluded that the crime being referenced was the murder of Jaime, the error in failing to clarify the instruction would, obviously, be harmless. If the jury found that Siqueros had been a major participant in the murder itself, no prejudice could result from an incorrect rendition of CALJIC No. 8.80.1. ** * See footnote *, ante.