Opinion
C082626
03-01-2018
THE PEOPLE, Plaintiff and Respondent, v. SANDY GEORGE et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F08070)
Following a joint trial, a jury found the four codefendants guilty and sustained allegations as follows: Sandy George (Sandy), first degree murder with a felony-murder (burglary) special circumstance, burglary, and conspiracy to commit burglary; Kevin Michael Moreno (Kevin), first degree murder with a felony-murder (burglary) special circumstance, grand theft as a lesser included offense of robbery, burglary, and conspiracy to commit burglary; Michael James Moreno (Michael), first degree murder with a felony-murder (burglary) special circumstance, grand theft as a lesser included offense of robbery, burglary, and conspiracy to commit burglary; and Peaches Alexis Moreno (Peaches) first degree murder with a felony-murder (burglary) special circumstance, petty theft as a lesser offense of robbery, burglary, and conspiracy to commit burglary. The jury declined to return a verdict on any count based on the commission of a robbery. The trial court imposed indeterminate life sentences in state prison without the possibility of parole on all defendants for the murder, and otherwise stayed sentence on the subordinate terms (except for Peaches, where it declined to impose any sentence for the petty theft misdemeanor).
As three of the four codefendants have the same surname, we will refer to each defendant by his or her first name.
Contrary to the belief of various defendants, this is not of any consequence in the interpretation of the remaining verdicts. (People v. Avila (2006) 38 Cal.4th 491, 600.)
On appeal, defendants collectively raise a multitude of issues. We will not detail the various contentions here. We shall reverse the convictions of Kevin and Michael for felony murder because of the trial court's instructional error (and vacate the associated special circumstance findings), and remand for retrial at the People's option. The judgment is otherwise affirmed.
We note that the purported attempt of Sandy to join globally in the claims of her codefendants is rejected for the failure to affirmatively articulate the prejudice in each instance as to herself specifically. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364; People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) Kevin and Michael do not have the same flaw in their joinder requests regarding issues in their codefendants' opening briefs, but generally we will not proceed to identify which issues they have joined on rejected arguments. However, we reject the efforts of the two defendants in their reply briefs to join additional issues for the first time in the reply briefing of their other codefendants. (Cf. People v. Baniqued (2000) 85 Cal.App.4th 13, 29).
FACTUAL AND PROCEDURAL BACKGROUND
This case reflects an outcome not contemplated in the Biblical parable of the Good Samaritan. The elderly victim had offered hospitality to defendants' family, who were without a home of their own. They took his possessions and ultimately killed him.
Sandy and Michael are not married, but had been a couple since 1993 when Sandy was 14. They are the parents of Kevin (born in 1994) and Peaches (born 1996). Other members of the family unit are a younger daughter (born in 1999), a son (born in 2009) with autism and a learning disability, and Michael's mother. No one was employed; the parents discouraged their children from attending school and encouraged them instead to steal.
In 2014, Leo Curry (the victim) was 77 years old and living alone in the Parkway neighborhood of Sacramento County in the home in which he had raised his children. Sandy made his acquaintance in the summer of 2014 through her widowed sister-in-law, who had known the victim for several years and was now the victim's girlfriend. A couple of days later, Sandy, her daughters, and young son moved in with the victim; Michael and Kevin stayed with Michael's mother, because the victim did not want them in his house.
When the victim was not at home, Sandy would call her husband and older son to invite them over. When Michael was in the house, he would take note of the victim's belongings, and a safe in a closet under the stairs.
In early November 2014, the victim told Sandy to leave because she insisted on smoking in his house. He gave her money for a motel room that she rented from November 5th to the 15th, where Michael and Kevin joined her. The victim allowed Peaches and her younger siblings to remain. The victim may have had an interest in marrying Peaches (if the younger sister is to be credited).
Beginning on November 5th, Kevin pawned the victim's possessions on three successive days. He received $350 for a guitar, $20 each for another guitar and an amplifier, and $30 for four golf clubs. The record does not indicate the manner in which he obtained these items. The younger sister told police that the victim had questioned her about the disappearance of the more expensive guitar.
There are a series of texts between Kevin and each of his sisters on the two days before the murder. As the content of these texts is not in dispute, it will suffice to summarize them in general without quoting misspellings, fumbled syntax, slang and abbreviations. The two days of texts documented Kevin's interest in the victim's money, jewelry, and watches, issuing directives (mostly to Peaches) to photograph objects for his benefit and to take them.
Of note on Thursday, November 13, the younger sister texted Kevin that Peaches was to blame for something, not the younger sister, and Peaches was scared; in response to his questioning, the younger sister also mentioned that she did not know where Peaches had put money or how much. Peaches sent her brother pictures of $2 bills (which the victim collected) and told her brother that "I got more. The old man is mad as hell. GV the money back n get the good shit." When her brother asked for a picture of the "gold" and all the money she had, Peaches texted him that she could not because she was going to put it all back and again asserted she would instead "get good shit." Peaches then asked her brother to have their father call her. Kevin asserted repeatedly that their father was "tripping out," and noted that Kevin's "wife" (i.e., his girlfriend) was saying that "it" was a setup to put Michael and Kevin in jail. Kevin also chided his sisters for calling their father's phone and waking him up with their "problems." Peaches sent reassurance that all was well. She also sent an obscure text: "It just started tomorrow is not going to be good."
The full texts from Kevin in this regard are left unexplained in the briefing: "Don't let nobody call dads phone that it's pissed he's going to miss everybody stays up tomorrow he want to go still a car to go kill Angelo everybody you woke dad out of his sleep not cool"; "I can't find and I'm assuming he stole the car to f*** everybody up"; "Sorry is too late you call with your problems"; and "Remember dad told you don't call what the problems you call dad with the problems now it is me and dads business."
Of note on Friday, November 14, Peaches reiterated that she had put the money back. Kevin asked for a picture of "the gold." Peaches sent a picture of a gold pendant with a red stone, and promised him that he could have it. In the afternoon, the younger sister texted Kevin that she thought their sister "is leaving tonight" with her boyfriend for Los Angeles (an event that did not apparently take place). Late Friday evening, Kevin was texting this boyfriend; Kevin noted he was contemplating a robbery, and posed the question, "Didn't the old man got money in the house? You think there's money in his safe and in his room?"
Between 11:15 a.m. and 11:45 a.m. on the Saturday of the murder, Kevin sent two texts to his girlfriend in which he said that he was about to commit a robbery. At 12:27 p.m., he pawned a chain necklace for $30, leaving the pawnshop at 12:30 p.m. with his father. The pawn ticket's description resembled the necklace in the texted photograph from Peaches. A text from his girlfriend saying her mother wanted to meet him went unanswered at 12:38 p.m. At 12:54 p.m., Kevin received a key text from his younger sister's phone: "Kevin, tell dad it's going down right now" (along with three "emoticons," the precise meaning of which we decline to take judicial notice but supposedly expressing some form of sadness). At 2:08 p.m. and 2:09 p.m., Kevin sent two reply texts to his girlfriend, in which he described himself as being a "little busy" in the midst of the "big mission" of committing a robbery.
Leaving the literate world of text messagery, we return to testimony. The only witnesses to the events in the victim's home who testified were Sandy and the younger daughter. The latter testified under a grant of immunity, and even the prosecutor found it necessary to acknowledge the checkered credibility of his own witness to the jury.
Sandy went to the victim's home on November 15 to get Peaches and take her with her. She got into an argument with her younger daughter, who did not want to stay there and watch her little brother. The victim involved himself in this argument, taking the side of the younger daughter. Sandy and Peaches left. When they returned, the victim again upbraided Sandy about the way she treated the younger daughter, who went upstairs and closed the door, although she could still hear the voices through it. In Sandy's account, the victim told her that he wanted her out of the lives of her younger children so that he could give them a proper upbringing, stating that he would otherwise call child protective services and the police, and find a special-needs home for the younger son.
While she was upstairs, the younger daughter spoke with her father on the phone. He apparently thought she was her sister, asking if their mother was there and saying something about a job. When he realized it was the younger daughter, he said never mind. The younger daughter then heard something that caught her attention, which may have been her mother calling for her sister, and put down her phone. When she went down the stairs, she could see her mother and older sister beating the victim with baseball bats. She went back to her room and asked her father whether the "job" was killing the victim, at which point her father hung up. Peaches came upstairs and took the phone. The younger sister did not recall whether or not she had sent the text to her older brother about "it" going down, noting that she shared the phone with her sister (the prosecutor nonetheless assuming in closing argument that it was she and not Peaches who sent the text).
She disavowed a pretrial statement in which she had said her father expressed shock when told that the victim was dead.
In Sandy's account, she acted alone. Peaches had gone upstairs. Infuriated with the victim's threats, Sandy grabbed a bat that was near the front door and beat him to death. She called for Peaches. Being in shock, she did not remember seeing her younger daughter at all until much later.
Michael and Kevin arrived shortly afterward. The younger sister, who was in her room, testified that she heard defendants talking about the fact that the victim was not yet dead. She heard her sister goading her brother into striking the victim, but the brother refused. She also heard her father telling Peaches to get a phone wire. The younger daughter "heard" someone tie it around the victim's neck. (The pathologist testified that the victim would have died in seconds or minutes from the blows, and did not mention any neck ligature in his testimony.) According to Sandy, her husband was irate about what she had done. Various defendants were unsuccessful in attempting to break into the victim's safe.
After his text about the robbery, there was an ongoing series of bilious romantic texts between Kevin and his girlfriend throughout the afternoon and evening of the murder. At one point, Kevin texted to say that he was going to take a shower before texting her again. Later that evening, he sent her texts about music to which he was listening on the victim's computer, which she said she would download. As the texts continued, he once again excused himself to go take a shower.
The family busied itself on November 16 with pawning various items belonging to the victim, including his flat-screen television; Peaches was involved in these transactions with her father. Michael also sold the victim's car for $2,000. In the course of another fulsome series of texts on November 17 between Kevin and his girlfriend (during which the girlfriend likened them to notorious gangsters Bonnie Parker and Clyde Barrow), Kevin told her a robbery had yielded $2,000.
In her briefing, Peaches purports to infer her reluctance to participate from her demeanor and conduct in surveillance videos. She does not establish that the jury was obligated to draw the same inference, so we disregard this vein of her argument, as we draw all inferences in favor of the judgment. (CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1119; People v. Mack (1992) 11 Cal.App.4th 1466, 1468.)
The victim's children were concerned when they were unable to reach him, and contacted the police. During the course of the welfare check on November 17, the police found the victim's body inside a car in the garage. (The course of the investigation leading to the capture of defendants is not material to this appeal, so we omit those facts from our account.)
DISCUSSION
1.0 Sandy George
1.1 There Is Sufficient Evidence of Sandy's Intent to Commit a Felony When She Entered the Victim's Home on the Morning of His Death
Citing from the analysis of other cases finding sufficient circumstantial evidence of intent—generally a fruitless task (Devore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 463)—Sandy argues the evidence in the record in the present case is insufficient. She points to the absence of any evidence of her own conduct before her entry on the morning of the killing, in her method of entry, while she was on the premises (ignoring the murder, of course), or in departing the premises, or of her own possession of stolen property. She contends the state of the record otherwise simply demonstrates guilt by association. We do not agree.
As Peaches noted in her November 13 text ("[t]he old man is mad as hell") and her sister noted in her police statement (the victim being concerned about the guitar's disappearance), the victim at this point had a dawning awareness of their family's ongoing campaign of thievery at his home once Sandy had been ordered to leave; the window of opportunity would thus be closing. Kevin indicated to his "Bonnie" that morning that a robbery was imminent, and no other burglary/robbery took place. The younger daughter's 12:54 p.m. text to her brother to tell their father that "it's going down right now" did not have any explanation of the antecedent for the pronoun, or any shock about what was "going down" (beyond possibly feeling sad). The only event "going down" at that time at the victim's home was Sandy and (according to the sister) Peaches beating the victim to death with baseball bats. It is therefore a reasonable inference that the siblings' texts referenced a preexisting plan of which all five family members were aware with respect to what the woman (or both women) intended to do to the victim, in order to allow all of the family unhindered access to the victim's home and safe without fear of apprehension afterward (which would be difficult to accomplish with a surviving victim to identify them, and to put the police in touch with the former sister-in-law). Certainly nothing in the accounts of Sandy or her younger daughter evinces any remorse on either's part for an unintended death that was not in the plan. Similarly, Kevin evinced complete nonchalance about the killing for the remainder of the day (to the point of even using the victim's own computer for his musical enjoyment) and in his ongoing cloying communications with his girlfriend without any indication that things had not gone according to plan. Peaches is simply a post-murder cipher on this record, which again is curious in light of her supposed affection for a man who treated her well.
Sandy faults the People's abbreviated response (which is somewhat less detailed than our own) to her "15-page constitutional insufficiency" argument (seven pages of which in fact analyze the evidence at trial), but as we are well aware the length of an argument does not have any correlation with its substance. This evidence is sufficient to establish a rational inference of an intent on the part of Sandy when she entered the victim's home just before killing him to aid in the ongoing thefts through the elimination of the obstacle, and does not wither in the face of any evidence to the contrary. We therefore reject the claim of insufficient evidence.
1.2 The Pattern Instruction on Use of Willfully False Statements to Draw Adverse Inferences Is Correct
As Sandy conceded at trial, she had lied at times in statements to the police because she did not want to get into trouble. The trial court gave the pattern instruction on the commonsense principle of drawing an adverse inference from a defendant's willfully false or misleading statements made in connection with a crime charged against the defendant.
Sandy acknowledges that People v. Crandell (1988) 46 Cal.3d 833, 871 (Crandell) approved the prior version of this pattern instruction, rejecting a claim that language allowing a jury to use the making of a false statement as " 'a circumstance tending to prove a consciousness of guilt' " (see People v. Covarrubias (2016) 1 Cal.5th 838, 908, fn. 30, italics added) is akin to being allowed to treat the falsehood as a full confession to the crime charged. Reasonable jurors "would understand 'consciousness of guilt' to mean 'consciousness of some wrongdoing' [in the psychological sense] rather than 'consciousness of having committed the specific offense charged' [in the legal sense]." (Crandell, supra, at p. 871.) However, she contends that a change in phrasing in the present pattern instruction—under which the trial court instructed the present jurors that a knowing falsehood "may show she was aware of her guilt of the crime" (our added)—eviscerates the basis for Crandell's approval of the former language, because this is now tantamount to guilt in the legal sense.
In rejecting an argument that the instruction impermissibly "pinpoints" certain evidence, we noted in People v. McGowan (2008) 160 Cal.App.4th 1099, 1103-1104, that the present instruction has only "minor differences" from the former one and thus the Supreme Court's prior rejection of the pinpoint argument was still controlling (although we were not called upon to consider the particular phrase Sandy now attacks).
The People do not identify, and our research has not found, a published case that focuses on the propriety of the phrase "guilt of the crime" in this instruction (although we note counsel for Sandy raised the identical argument in recent unpublished opinions in the Fourth and Fifth Appellate Districts, which—like other districts of the Court of Appeal—rejected it in unpublished opinions, apparently no one finding the argument to be colorable enough to publish its rejection). However, we do not find a meaningful distinction between this phrase and "consciousness of guilt," particularly as the current instruction—like its predecessor—also reminds the jury that a false statement cannot prove a defendant's guilt of itself, therefore "clearly implying that the evidence is not the equivalent of a confession." (Crandell, supra, 46 Cal.3d at p. 871.) We therefore reject Sandy's argument.
In the pattern language used in the present case, the court instructed: "[E]vidence that the defendant made such a statement cannot prove guilt by itself."
2.0 Kevin Moreno
Before addressing Kevin's various arguments, we note at the outset that he is flatly wrong in supposing that what he terms the insufficient responses on the part of the People to his claims "effectively concede[s] the[ir] validity." Because at all times it is the burden of the appellant to demonstrate error affirmatively, and we are precluded under the Constitution from reversing a judgment absent prejudicial error, the failure of a respondent to address an argument is not treated as a concession of error. (In re Bryce C. (1995) 12 Cal.4th 226, 232-233; People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178, fn. 3; see Cal. Const., art. VI, § 13.)
2.1 The Claim of Prosecutorial Misconduct Is Forfeited
Kevin contends the prosecutor committed misconduct in asserting in closing argument that any exculpatory statements on the part of the younger sister needed their own corroboration. As he concedes, none of the defendants made an objection to the argument.
Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct, except where a defendant affirmatively establishes on appeal that it was irremediable or it was futile to object, with more than a "ritual[ized] incantation" to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Kevin neither attempts to establish futility on the present record, nor offers any reason why the challenged argument could not have been the subject of an effective admonition.
Kevin's attempt to reach the issue under the guise of ineffective assistance of trial counsel fails in two regards. In the first place, direct appeal is almost inevitably the inappropriate forum for establishing that the inherently tactical choice of failing to raise an objection to misconduct fell below reasonable professional standards. (People v. Lopez (2008) 42 Cal.4th 960, 966, 972.) In the second place, Kevin does not provide anything more than a perfunctory analysis of how a failure to object did not meet objective professional standards; "[t]his will not suffice" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 [rejecting claim of ineffective assistance on this basis]). As a result, we will not countenance this exercise in second-guessing. If in fact trial counsel did not have any strategic basis for failing to object, Kevin has a remedy in habeas corpus (if he can establish resulting prejudice).
Finally, although we have discretion to consider an issue regardless of forfeiture, this applies where it raises a question of law on the undisputed facts appearing in the record on appeal. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 415, pp. 473-474.) However, this is a disfavored course of action; it is unjust to the opposing party, unfair to the trial court, and contrary to judicial economy (i.e., a waste of the time of the parties and the judicial branch) since it encourages the embedding of reversible error through silence in the trial court. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 873.) As a result, we ordinarily exercise our discretion to excuse forfeiture "rarely and only in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The circumstances of this appeal hardly satisfy this stringent criterion. The claim of misconduct is therefore not cognizable in this appeal.
2.2 Including a Pattern Accomplice Instruction for Simple Burglary That Is Inappropriate Where Burglary Murder Is at Issue Is Reversible Error
In order to be guilty of felony murder, an accomplice must assist or encourage the commission of the underlying felony before the principal kills the victim. (People v. Pulido (1997) 15 Cal.4th 713, 726.) The trial court correctly instructed the jury in this regard: "The defendant must have intended to commit, or aid and abet the felony of burglary . . . before or at the time of the act causing the death [of the victim]."
However, in instructing on the crime of burglary, the trial court unaccountably included the standard pattern instruction that the intent to assist or encourage the felony can arise at any time before the principal "finally left the structure," which does not make any reference to the time of an act causing the victim's death (as that is ordinarily not a concern in a simple burglary). The bench notes for the instruction could not more plainly state that a trial court must "not give this instruction if the defendant is charged with felony murder." (Bench Notes to CALCRIM No. 1702 (2017) p. 1122.) This oversight seems to have been shared by the prosecutor and all of the defense counsel.
In the analogous situation of felony murder premised on a robbery, People v. McDonald (2015) 238 Cal.App.4th 16 involved evidence that the defendant either assisted in the planning of the robbery, or only offered assistance after the principal caused the victim's death; the jury was duly instructed with the pattern instruction that accomplice liability for ordinary robbery could arise at any point before the principal reached a place of temporary safety. (Id. at p. 21.) The trial court also gave the pattern instruction on accomplice liability for robbery murder, omitting the necessary language regarding the Pulido limitation. (McDonald, at pp. 22-23.) Because "[j]urors [are] directed to consider the instructions together" (id. at p. 26), the jury could have applied the ordinary rule of accomplice liability for robbery in the context of accomplice liability for robbery murder, in violation of the Pulido limitation. The record did not otherwise affirmatively show whether the verdict was free from the legally invalid theory, which required the reversal of the judgment. (Id. at pp. 27-32.)
This, of course, was an error more egregious than in the present case, where we have conflicting statements of derivative liability, one of which is legally infirm as to burglary murder. Nevertheless, "[l]anguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court [does not have any way] of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." (Francis v. Franklin (1985) 471 U.S. 307, 322-325 [instruction that is internally inconsistent about the application of impermissible mandatory presumption is reversible error].) "Numerous cases have held that giving instructions that are contradictory or so inconsistent to confuse the jury was reversible error." (People v. Lewelling (2017) 16 Cal.App.5th 276, 299; accord, People v. Jeter (2005) 125 Cal.App.4th 1212, 1217-1218.) Thus, the trial court clearly erred in its instructions in this regard.
The People utterly ignore these holdings and the analysis of prejudice in People v. McDonald. They claim in highly abbreviated fashion only that the jury somehow would discern on its own that one or the other of the two instructions might not apply, or would have asked for guidance if they were in fact confused. This is not the proper template for an analysis of prejudice.
Kevin did not appear at the scene of the crimes until after the victim was dead. While, as we have noted above, there is evidence from which it can be inferred that he joined in the planning of a burglary likely to result in the death of the victim, this is not a compelled inference. Therefore, the facts do not establish derivative liability for the burglary before the victim's death as a matter of law, and certainly not beyond a reasonable doubt. Nor is this point necessarily resolved in any of the other verdicts or findings in light of the remainder of the instructions.
Argument of counsel may be considered in determining the effect on a jury of ambiguities in instructions. (Middleton v. McNeil (2004) 541 U.S. 433, 438 ; People v. Kelly (1992) 1 Cal.4th 495, 526-527.) The prosecutor in the present case argued in rebuttal that "It's important to understand for felony murder [that] it is not required that [a] defendant be present when the act causing death occurs. . . . It doesn't matter. [Kevin and Michael] were part of this burglary . . . and [the victim] was killed. They are on the hook. In for a penny, in for a pound. [¶] For the aiding and abetting [of] . . . a burglary . . . , not the murder[,] [t]he defendant does not need to have actually been present when the crime was committed to be guilty as an [accomplice]. They don't have to be in the house, they don't have to participate in it, just that they committed acts to aid and abet . . . the crime of burglary . . . . [¶] It was continuously stated [by defense counsel that] anything that happened after [the victim] was killed has no bearing on the charge of murder, and that is absolutely wrong. It is dead wrong. Your job is to determine whether Kevin[,] Michael[,] and Peaches . . . were [accomplices] to this burglary, and if so, this plan to kill doesn't matter, but their conduct after he was dead does matter and you can consider that. [¶] . . . [¶] . . . And it is being suggested to you that after the fact you can't consider . . . that he posted a[n] . . . ad with [the victim]'s property, that he texted hey, I've got two G's from this lick. You absolutely can consider what [defendants Kevin, Michael, and Peaches] did after [the victim] was dead to help you determine whether or not they were aiders and abettors to the burglary . . . ." (Italics added.) If anything, this argument only amplified the potential for confusion over the Pulido limitation. As best we can follow this adumbrative point (let alone a lay jury), the prosecutor admixed discussion of accomplice liability for burglary with an insistence in its midst that it was wrong for the defense to argue that postmortem conduct was irrelevant to murder, then returned to burglary without making any distinction that accomplice liability for the underlying burglary had a different standard than accomplice liability for the felony murder. In any event, the prosecutor's argument certainly did not resolve the contradiction in the instructions.
As we are unable to determine whether the jury's verdict on felony murder is based on a legally valid theory, we must reverse the conviction and its associated special circumstance and remand for retrial at the option of the People. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
2.3 Reversal of the Conviction for Felony Murder on the Basis of Instructional Error Moots the Other Arguments of Instructional and Cumulative Error with Respect to This Conviction
Under different headings, Kevin contends the pattern instruction on accomplice liability for felony murder is inadequate because it does not specify that in addition to intending to assist or encourage the underlying felony before the principal causes the death of the victim, an accomplice must also commit an act in furtherance of that intent. He also contends the instructions and the prosecutor's argument allowed the jury to convict him based on the invalid theory that he could be guilty of felony murder premised on his participation in a conspiracy to commit burglary. Finally, he contends cumulative instructional error requires reversal of the conviction for felony murder.
We have already reversed the conviction based on Pulido error. This moots the remainder of Kevin's arguments addressed to this count.
2.4 The Evidence Is Otherwise Sufficient to Support a Conviction for Felony Murder
Kevin correctly asserts that the evidence is insufficient to demonstrate that he committed an act aiding the November 15 burglary before the death of the victim (as he necessarily pawned anything taken on that date after the victim's death). He is incorrect that his exhortations to Peaches to take the victim's possessions were somehow limited to particular items taken before November 15. His encouragements were not particularized; they were global and ongoing in intent. Moreover, as we have explained in connection with Sandy, there is sufficient evidence that Kevin was an active participant in the planning for what occurred on November 15. Therefore, there is sufficient evidence he actively encouraged the burglary, and can thus be retried as an accomplice to the felony murder.
2.5 The Evidence Is Otherwise Sufficient to Support the Special Circumstance
Tison v. Arizona (1987) 481 U.S. 137, 158 held that an accomplice other than the actual killer who did not have an intent to kill the victim is eligible for capital punishment pursuant to a felony-murder special circumstance only where the accomplice was a "major participant" in the felony and showed a "reckless indifference to human life," standards incorporated into California law. (See People v. Clark (2016) 63 Cal.4th 522, 609.) In People v. Banks (2015) 61 Cal.4th 788, our Supreme Court set criteria for the circumstances under which evidence established that an accomplice is a major participant. (Id. at p. 803.) It ultimately concluded that where the evidence did not show the accomplice had any role in planning a robbery or procuring the weapons used, and was absent from the scene of the shooting (waiting in the escape car), it was insufficient to establish that the accomplice was a major participant and the special circumstance was invalid (and thus he was ineligible for the penalty of death). (Id. at p. 805.) Clark, in turn, focused on the sufficiency of the evidence to establish a reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 614.) It enumerated several factors that case law had found to evidence the necessary recklessness, with the caveat that none of them was determinative of the issue. (Id. at p. 618.) These included knowledge that weapons would be used (as well as the number of weapons and whether the accomplice was armed with one), a physical presence at the scene of the killing that would have provided the opportunity to forestall the killing or render aid to the victim that would otherwise be unavailable, the duration of the felony, any knowledge of the characteristics of the actual killer that would make a homicide likely, and any efforts to minimize the risks of violence during the felony. (Id. at pp. 618-622.) Clark concluded that even though the accomplice of the actual killer was the mastermind of the crime, his efforts to minimize the possibilities of violence "and the relative paucity of [any] other evidence to support a finding of reckless indifference" meant there was insufficient evidence to support this factor and thus the finding of a special circumstance was vacated. (Id. at p. 623.)
We agree with Kevin that the circumstances of the present case would not satisfy the criteria for either the factor of being a major participant or of reckless indifference to human life, and indeed the People do not even make any attempt to uphold the verdict on these bases. This begs the question, however, of whether Kevin intended that the victim be killed to facilitate the wholesale ransacking of the victim's home, which would forestall the need to consider the Banks-Clark analyses.
The People again point to the evidence of the various texts to and from Kevin as inferential evidence that he participated in a preexisting plan for stealing the victim's property. Kevin asserts that this does not affirmatively demonstrate that he was aware that participation in this plan involved killing the victim, or even the use of a weapon against the victim. We reiterate our analysis with respect to Sandy that the younger sister's sangfroid in reporting to Kevin that the burglary was underway supports a rational inference that the circumstance of the killing did not come as any surprise to her, or to the family actively participating in the burglary. The same is true of the post-murder texts between Kevin and his girlfriend, which do not betray the slightest dismay about the manner in which the planned burglary was accomplished or any concern about consequences. Again, it would be difficult to imagine how the family could have hoped to escape apprehension for the burglary if there was a surviving victim to identify them. Consequently, there is sufficient evidence to support the special circumstance finding on the alternate theory in the jury instruction that "the People must prove . . . that the defendant intended to kill . . . ." As a result, Kevin may be retried on the special circumstance on remand.
2.6 A Sentence of Life Without Possibility of Parole Would Be Constitutional for Kevin
Miller v. Alabama (2012) 567 U.S. 460 precludes a mandatory sentence of life without possibility of parole for a juvenile even for homicide. Kevin was 19 at the time of the offenses, a month short of his 20th birthday. In the trial court, Kevin conceded that this principle (first articulated in Graham v. Florida (2010) 560 U.S. 48 in the context of finding a sentence of life without parole for juveniles who commit nonhomicide offenses to be constitutionally disproportionate) did not on its face apply to nonjuveniles, but asserted its "logic" should be extended to a 19-year-old defendant. He also invoked the prohibition of disproportionate punishment under the state Constitution (without any articulation of the pertinent criteria). In an objection to a factor in aggravation contained in the probation report, Kevin also asserted that past evaluations of his mental capabilities found them to be limited (albeit not to the point of developmental disability).
On appeal, Kevin cobbles together his relative youth and his purported intellectual deficits to renew his argument that we should extend the holding of Miller beyond its bright-line tether to chronological age. Notably absent from his argument is any authority from this state or the United States Supreme Court that would suggest that this breathtaking erasure of Miller's bright line (in favor of case-by-case evaluations of individual circumstances of particular defendants) is an evitable consequence of Miller's rationale. We will eschew his invitation to impose a broader constitutional restriction on the quintessential legislative prerogative of designating penal sanctions. Thus, should Kevin be subject to a finding of this special circumstance on retrial, a life sentence without possibility of parole would be constitutional.
Kevin also purports to renew his challenge to his sentence under our state Constitution. The entirety of his argument is a reiteration of his claim of having only limited mental capabilities, coupled with the assertion that he was merely a pawn in his family's scheme and did not himself commit murder. Assuming that his lack of cogent argument on this issue in the trial court does not forfeit the issue on appeal, we are not persuaded.
A defendant who wishes to show that a sentence is cruel or unusual under the state Constitution must satisfy one or more of three criteria for demonstrating a disproportionate punishment. The first examines the nature of the offense and the offender with particular attention to the degree of danger each may present to society. The second compares the sentence with those for similar offenses under California law. The last compares the sentence with those in other states. (In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1516; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.) Kevin has abandoned either of the latter two criteria, and does not suggest that the offenses of which he stands convicted do not represent a high degree of danger to society and are insufficiently grave to warrant his sentence. Even if Kevin was not a mastermind of his family's criminal enterprise, the record does not indicate that he had any reluctance in participating or regret over the fatal consequences to the victim. Society is entitled to protection against the grave danger that easily manipulated amoral individuals—who do not lack the capability to be responsible for their actions—represent, regardless of any unfortunate circumstances Kevin may have undergone in his upbringing. As a result, this is not one of the "exquisitely rare" situations in which we are entitled to find a sentence is disproportionate. (People v. Bell (2016) 3 Cal.App.5th 865, 873.) Therefore, the state Constitution would not prevent the imposition of a life sentence without possibility of parole on retrial if the special circumstance is alleged and sustained.
3.0 Michael Moreno
3.1 Including a Pattern Accomplice Instruction for Simple Burglary That Is Inappropriate Where Burglary Murder Is at Issue Is Reversible Error
Michael makes the same argument as Kevin regarding the erroneous inclusion of the standard burglary accomplice instruction where a felony murder premised on the burglary is at issue. As with Kevin, the evidence does not establish Michael's participation in the burglary before the death of the victim as a matter of law or beyond a reasonable doubt. Our analysis with respect to Kevin therefore applies equally to Michael. (See Discussion, ante, at pp. 13-16.) As a result, we must reverse the conviction for felony murder and vacate its associated special circumstance, and remand for retrial at the option of the People.
3.2 The Evidence Is Otherwise Sufficient to Support a Conviction for Felony Murder
As with Kevin, there is circumstantial evidence (albeit not as extensive) from which it can be rationally inferred that Michael actively participated in the planning of the events of November 15. Other than the testimony of his wife and his younger daughter's repudiated pretrial statement, neither of which a jury necessarily must credit, no evidence demonstrates that he found the death of the victim to be an unforeseen outcome of the plan. While this is not compelling evidence, it is sufficient to support a conviction for felony murder, and he therefore may be retried on this charge.
3.3 The Evidence Is Otherwise Sufficient to Support a Special Circumstance Finding
Michael, like Kevin, asserts there is insufficient evidence of his status as a major participant in the burglary or his reckless indifference to human life in its commission. (We will not reiterate the controlling law.) Again, the People do not attempt to uphold the verdict on this basis, asserting instead that the evidence of the text from the younger daughter to Kevin is sufficient evidence that the killing of the victim in the course of the burglary was contemplated. While this is thinner evidence than the multiple texts from Kevin afterward that did not evince any sign of distress or concern, we nonetheless agree, given the absence of any objective evidence indicating the killing was not part of the planning process in which Michael participated.
Michael points to the prosecution's failure to argue a theory of guilt under which the plan for burglary included killing the victim. We are not aware of any principle under which a prosecutor's choice to emphasize a particular theory of guilt in closing argument that might seem easier to prove would foreclose a jury from resting a verdict or finding on another option permissibly open to them under the instructions.
Michael also contends it is not reasonable for a jury to infer that the plan for the burglary included killing the victim. As we noted above, the family could not hope to evade prosecution if they left a surviving victim, and therefore it would indeed be reasonable to infer that the plan addressed this concern. We therefore reject Michael's challenge to the sufficiency of the evidence to support the special circumstance, and the People as a result may retry him on the special circumstance on remand.
3.4 The Evidence Is Sufficient to Support the Verdict of First Degree Burglary
Michael contends that the evidence is insufficient on his conviction for simple first degree burglary to establish that he was a principal because he did not enter the home until after the victim's death, when it was not an occupied dwelling any longer. However, as we have discussed numerous times already, the evidence is sufficient to establish that he encouraged the entry of the female defendants when the victim was still alive pursuant to a plan in which the killing would facilitate their theft of his possessions. Also, unlike burglary murder, he need not have assisted in the first degree burglary before the victim's death to be guilty as an accomplice. We consequently reject his claim that we must reduce the conviction to second degree burglary.
4.0 Peaches Moreno
4.1 The Instructions and Jury Queries Did Not Demonstrate That the Jury Was Premising Liability for Burglary Murder on any Entry Other Than the One on the Morning of the Killing
During instruction setting, the trial court noted that with respect to accomplice liability for a principal's commission of a felony murder, the present version of the instruction omitted language from a former version that had provided, "There must be a logical connection between the cause of death and the burglary . . . . The connection between the cause of death and the burglary . . . must involve more than just their occurrence at the same time and place." (This language simply reflects the concept that the principal must be engaged in furthering the commission of the contemplated felony at the time of the killing, as opposed to committing a killing that that does not have any relation to the contemplated felony (People v. Cavitt (2004) 33 Cal.4th 187, 203-204 [finding that as this concept is simply a clarification of the elements of liability for a felony murder, it need be given only on request and is not required sua sponte] (Cavitt)).)
The court expressed its intent to honor the omission of this language in instructing the jury. The attorneys for all four defendants indicated their affirmative desire to make the language part of the instruction, counsel for Peaches asserting, "I think it is an issue in this case, so I would like to see it." The trial court instructed in accordance with counsels' desires both with respect to felony murder and the felony murder special circumstance.
The jury sent two questions relating to this language. First, "[w]e would like to ask for clarification on the term 'logical connection' as it is used in the instructions for [felony murder]." Without any objections, the court responded, "The words 'logical connection' are defined in their ordinary, everyday meanings. It simply means a logical link between the cause of death and the crime[] of burglary . . . . That link must be something more than just their occurrence at the same time and place."
A day later, the jury asked, "[In] reference to . . . the 'logical connection' of felony murder; [the instruction] states that for a person involved to be guilty of felony murder, there must be a logical connection between the act of burglary and the act that resulted in the death of a person. Is it appropriate to assume a logical connection between these two acts is intended to be limited to the following basic ways: (1) an action by the perpetrator during the commission of a specific act of burglary that results in the death of a person, or (2) an action by the per[p]etrator resulting in death that is born of the same motivation as the act of burglary[,] i.e.: to facilitate or cover up the act of burglary?" (Italics added.) The trial court responded, "The 'logical connection' described in [the instruction] could include, but is not limited to, the general types of activity described in the two examples included in [your question]. It is up to the jury, using the totality of the facts, to determine whether the required logical connection has been proved beyond a reasonable doubt. Please also refer to the Court's [prior response]." The court's response was fashioned with the assent of all counsel; counsel for Peaches was concerned only that it was clear to the jury that mere temporal connection was insufficient of itself to establish a logical connection, for which reason the court agreed to refer to its prior response making that point.
In her opening brief, Peaches appeared to be arguing that the concept of logical connection and the trial court's responses to the inquiries about the meaning of that phrase allowed the jury to premise guilt on the commission of a burglary antedating the entry of the victim's home immediately before his murder. The People responded that a reasonable jury would not interpret the instruction or the responses in that manner, especially in light of closing arguments (a proposition with which we would agree). In her reply brief, Peaches focuses on the jury's employment of the italicized phrase "a specific act of burglary" as necessarily indicating the jury was considering the entire spectrum of the behavior of defendants with the victim's property over the course of the preceding month.
We reject all premises of this defendant's argument. The language in the modification adding "logical connection" is a correct statement of the law under Cavitt, supra, 33 Cal.4th 187, to which counsel for Peaches affirmatively assented as a matter of express tactics (which would forfeit a challenge to the modification in any event). Nor is there any error in the court's responses to the jury inquiries (to which again counsel for Peaches affirmatively assented, forfeiting a challenge to their wording in any event). Finally, the use of the phrase "a specific act of burglary" when employed along with "that results in the death of a person" does not permit any rational interpretation that the jury was contemplating some other act of burglary other than the one occurring immediately before the killing of the victim; no prior entry could be said to have resulted in the victim's death.
4.2 Permissive Occupancy of the Victim's Residence Is Not a Defense to Burglary
As we noted a quarter-century ago, "a person who enters a structure . . . with the intent to commit a felony is guilty of burglary except [under] . . . an unconditional possessory right" (People v. Salemme (1992) 2 Cal.App.4th 775, 781), which is either the right "to exert control over [the] property to the exclusion of others" (id. at p. 779) or "to enter as [an] occupant of that structure" (id. at p. 781; see People v. Clayton (1998) 65 Cal.App.4th 418, 421, fn. 3.) This must be a personal right that is not conditioned on the consent of other residents such that a defendant could not be refused admission or be ejected after entry. (Salemme, supra, at p. 780.) On the basis of these principles, the trial court rejected a proposed instruction from counsel for Peaches seeking to invoke this defense to burglary, finding that none of the defendants had an unconditional possessory right in the victim's home at the time of their entries; her counsel stated that he thought the court's reasoning was "accurate."
Contending this ruling was error, Peaches raises two related arguments. She first claims she had an unconditional possessory right in the victim's home, and thus cannot be guilty of burglary in her own right. Moreover, she claims that as a result of her unconditional possessory right in the home, she cannot be guilty of aiding and abetting another person's burglary of the victim's home.
Where Peaches goes awry is simply making a conclusory assertion that she had a "right" to be in the home of the victim without any analysis of the basis for this "right." She attempts to divorce the concept of an unconditional legal basis for a claimed possessory interest from the equation, but her citation of dictum in People v. Smith (2006) 142 Cal.App.4th 923, 932 is inapt: A landlord may be guilty of burglarizing a tenant's apartment, but that is not because legal ownership is irrelevant; it is because the residuary right of possession that a landlord holds is qualified and not unconditional. A tenant has the legal right (unless the lease or statute provides otherwise) to exclude a landlord from the premises during the term of the lease. Thus, the legal ownership of a landlord (in the dictum) or the husband/defendant's interest in a home that was subject to his wife's temporary exclusive possession and a restraining order against him (id. at pp. 931-932) are not unconditional and therefore do not offer a defense against a charge of burglary.
Nowhere does Peaches explain what remedy she would have had if the victim had refused her entry or ejected her from his home. Her permissive presence is no more an unconditional possessory right than the defendant invited to occupy a cabin on a more transient basis in People v. Frye (1998) 18 Cal.4th 894, 953-954, on the owner's property, where the court found sufficient evidence to support his burglary conviction in the absence of any unconditional right to be on the property. (Accord, People v. Garcia (2017) 17 Cal.App.5th 211, 222-225 [homeowners and permanent residents cannot intrude on their own unconditional possessory interests, but invited guests do not have unconditional possessory interests.) Her invocation of the legal theory of "tenancy at will" to describe her interest in the victim's home does not aid her, because again it is conditioned on the victim's continued sufferance of her presence that she cannot enforce against the homeowner. We therefore reject this argument; as for her related claim that one with an unconditional possessory right cannot aid and abet the burglary of a third party, its necessary factual premise is consequently lacking as well.
4.3 There Was Substantial Evidence That Peaches Intended to Commit Theft on Entering the Victim's Home on the Morning of the Killing
Peaches contends there is an absence of any direct evidence of her intent to commit theft before any of her entries into the victim's home, or on the morning of the victim's killing in particular. She claims any indirect evidence of her intent is mere speculation that cannot constitute substantial evidence to support any of the verdicts against her. Assuming that liability as an accomplice of her mother's entry does not moot this argument (the People not making this assertion in response), we do not agree.
Peaches points to the lack of any affirmative knowledge on the part of her testifying younger sister that Peaches had in fact been the one to take any of the victim's property and give it to the other members of her family to pawn. She also notes the absence of any evidence that she stole the necklace appearing in her text that her father and brother pawned in light of her sister's testimony that the victim had given her a necklace. Peaches further asserts that it was "impossible" for her to have obtained anything from the victim's safe (despite texted photos purporting to be items from the safe that she said she later returned to the safe) because no one could open the safe after the victim's death. However, it is not "speculation" that the victim may well have left the safe open, providing an opportunity for the temporary thefts to which she attested in her texts, any more than her own presumption that the safe was never open.
More to the point, although Peaches disparages its significance, we repeat one more time our analysis from above: On the morning of the killing, her sister texted her brother to tell their father that "it's going down right now," without any explanation of that unspoken antecedent. As the only event taking place at that time was Sandy and Peaches beating the victim to death with baseball bats, it is a reasonable inference—not speculation, as Peaches would have it—that the family had a preexisting plan of what the female defendants would be doing to allow them all to have unhindered access without risk of apprehension. (Indeed, the note from the jury discussed above indicates that a killing to cover up the burglary was a subject of deliberations.) We therefore reject the claim of insufficient evidence.
DISPOSITION
The convictions of Kevin Moreno and Michael Moreno for first degree murder are reversed, and the associated findings of a special circumstance are vacated. The counts and allegations are remanded for retrial at the election of the People. The judgment is otherwise affirmed.
BUTZ, Acting P. J. We concur: MURRAY, J. NICHOLSON, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.