Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA343446, Michael E. Pastor, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Ellen Birnbaum, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Jose Hernandez (defendant) was charged by information with the murder of German Garay. After a jury trial, defendant was found guilty of first degree murder. The court imposed a sentence of 25 years to life. On appeal, he challenges the instruction given regarding the withdrawal of an aider and abettor from the commission of a crime. Finding no error, we affirm.
In the same information, defendant was also charged with dissuading a witness. That charge was dismissed before trial.
Evidence at Trial
Defendant and the victim, Garay, were both romantically involved with Adela Nava. Defendant dated Nava first, in 2006. Nava then lived with Garay for approximately three months in 2007, while still seeing defendant. Nava’s daughter, who lived with Nava and Garay, occasionally observed defendant and Garay arguing over Nava. In January 2008, Nava moved in with defendant.
On February 17, 2008, Nava had a birthday party. Defendant and Garay were both present, along with family members and others. Garay was drinking. Garay regularly carried one or two machetes in his backpack.
On February 19, Garay was shot. When officers arrived on the scene, they observed a large, machete-like knife in his waistband. Officers found another machete nearby, behind a telephone booth. The medical examiner reported that Garay had been shot four times, once in the front and three times in the back. Two of the shots severed major blood vessels and were considered fatal.
Interviewed by police officers in July 2008, appellant admitted being involved in the shooting. He said that Garay had started a fight with Nava at her party and that he and another man, “Danny,” intervened. During the confrontation, Garay pulled out his machetes. After Garay left, Nava said she wanted defendant to find someone to “take care” of Garay. Either defendant suggested contacting his brother Eric, who belonged to a gang, or Nava asked defendant to call Eric because she knew of his gang involvement. Defendant called Eric, who arrived at defendant and Nava’s location and spoke with Nava. Defendant did not overhear their conversation, but understood that Nava intended to hire Eric to shoot Garay. After Eric spoke with Nava, defendant, Eric and Danny got into Eric’s car and went to look for Garay. Defendant was driving. Eric was in the back seat, armed with a sawed-off.22 caliber rifle. Defendant saw Garay near the street, facing a pay phone, and parked the car. Defendant told Eric not to shoot. Eric shot at Garay multiple times from the car. Garay collapsed on the sidewalk. Defendant drove back to Nava’s house, where Nava gave Eric $200.
The interview was recorded and the tape played to the jury. In addition, a transcript was offered into evidence.
Although another witness recalled Nava’s party taking place two days before the shooting, appellant’s statement indicated that the two events occurred on the same day.
The defense called a single witness, Angel Serrano, who testified that Garay was a bully who initiated fights with people not as strong as he. On one occasion, Serrano confronted Garay about his actions and Garay initiated a fight with Serrano, which ended with Garay threatening Serrano with a broken beer bottle.
Instructions and Closing Argument
Without objection, the court instructed the jury with CALJIC No. 3.03, the instruction covering withdrawal from a crime by an aider and abettor. As given, the instruction provided: “Before the commission of any charged or lesser included crime, an aider and abettor may withdraw from participation in that crime, and thus avoid responsibility for that crime by doing two things: First, he must notify the other principals known to him of his intention to withdraw from the commission of that crime. Second, he must do everything in his power to prevent its commission.”
In closing, the defense argued that the evidence was insufficient to establish that defendant knew in advance about Eric’s intent to shoot Garay. Counsel contended the evidence did not indicate that defendant was aware, prior to the shooting, of the precise nature of the agreement between Nava and Eric or that Eric had a gun. Counsel argued that defendant may have believed Eric intended only to rough up Garay. Counsel referred to defendant’s alleged “don’t shoot” statement as evidence of defendant’s surprise when he saw the gun. Counsel did not argue that defendant had initially intended to aid and abet a shooting and that by making the statement, effectively withdrew from the crime.
DISCUSSION
On appeal, defendant contends the trial court erred in giving CALJIC No. 3.03 which, according to defendant, misstates the law. Defendant argues that a party should be obliged to do only what is reasonable when he or she attempts to withdraw after initially committing to aid and abet a crime. In support of his contention, defendant notes that older versions of CALJIC No. 3.03 expressly stated that the party attempting to withdraw need only do what is reasonable under the circumstances. (See People v. Brigham (1989) 216 Cal.App.3d 1039, 1046, fn. 2, quoting (former) CALJIC No. 3.02 (1979 rev.) (mod.) (4th ed. 1979) [“‘One who has aided and abetted the commission of a crime... may end his responsibility for the crime by notifying the other party or parties of whom he has knowledge of his intention to withdraw from the commission of the crime and by doing everything reasonable under the circumstances in his power to prevent its commission.’” (Italics deleted.)]; People v. Norton (1958) 161 Cal.App.2d 399, 403 [jury instructed that to withdraw from crime, party engaged in aiding and abetting must “‘do[] everything practicable to prevent its consummation’”].)
We note that the analogous CALCRIM instruction -- No. 401 -- provides: “To withdraw, a person must do two things: 1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime. AND [¶] 2. He or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime.”
Our Supreme Court recently reviewed the language of CALJIC No. 3.03 and concluded “[t]he instruction is a correct statement of the law.” (People v. Richardson (2008) 43 Cal.4th 959, 1022; see People v. Jackson (1996) 13 Cal.4th 1164, 1221 [quoting language found in CALJIC No. 3.03 with approval]; People v. Belmontes (1988) 45 Cal.3d 744, 793, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390 [same].) We are bound by this clear Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To the extent defendant contends the language was correct in law, but too general or incomplete under the circumstances, that contention is not cognizable on appeal because he failed to request clarification from the trial court. (People v. Richardson, supra, 45 Cal.4th at p. 1023; People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
Moreover, the evidence presented indicated that defendant did virtually nothing to prevent the shooting. In his interview with the officers, defendant said he told Eric not to “do it” when they spotted Garay. While this might have minimally met the first requirement -- communicating intent to withdraw -- defendant did not follow up with any action. He did not, for example, attempt to move the car or grab Eric or shout out a warning to Garay. Moreover, defendant did nothing to help the victim in the aftermath of the shooting. Instead, he drove himself and the other occupants of the car to safety as Garay lay bleeding to death on the ground. Defendant contends that an “unarmed defendant” should not be expected “to prevent the crime by throwing himself in front of the armed perpetrator’s weapon.” In this case, the “armed perpetrator” was defendant’s own brother and he cites nothing to suggest he would have been at risk of harm had he attempted to prevent the shooting. In sum, even had the jury been instructed as defendant suggests, the defense would not have succeeded, and any error in failing to offer an instruction using the language defendant believes appropriate was harmless beyond a reasonable doubt. (See People v. Fiu (2008) 165 Cal.App.4th 360, 386-387 [where defendant told fellow gang members to leave unconscious victim alone, but took no other steps, such as summoning medical assistance, helping victim leave or removing younger gang members from area, “[n]o reasonable jury would have found defendant’s actions to suffice for withdrawal”].)
Because we conclude there was insufficient evidence of withdrawal to support the defense, we need not address appellant’s contention regarding the failure to specifically instruct on the burden of proof.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J.SUZUKAWA, J.