Opinion
2d Crim. No. B223446 Super. Ct. No. 2008039700
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID LANDEROS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
David Landeros appeals from judgment after conviction by jury of two counts of aiding and abetting first degree murder. (Pen. Code, § 187, subd. (a).) The jury found true a special circumstance allegation of multiple murder. (§ 190.2, subd. (a)(3).) The court sentenced appellant to life in prison without the possibility of parole.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that (1) the court erroneously instructed the jury that it should consider the gunman's state of mind, rather than appellant's, when determining the degree of murder; and that (2) the trial court should have instructed the jury on voluntary manslaughter, as a lesser included offense, because there was evidence to support an imperfect self-defense theory. We agree with the first contention of error, but find it harmless beyond a reasonable doubt, and we reject the second. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of aiding and abetting the premeditated murder of Luis Ruiz and Ruiz' mother. The prosecution theory was that appellant and the gunman planned to kill Cesar Navarette in order to stop him from speaking disrespectfully about appellant, and the gunman shot the wrong man, also catching his mother in the blast.
Appellant and Cesar Navarette had a long history. They had known each other and had been neighbors since childhood. In 2005, appellant cooperated with police against Navarette's brother in a murder investigation. In the summer of 2008, Navarette saw a police report that identified appellant as an informant. Navarette told others in the neighborhood about this. Several weeks before the murders, a shot was fired from a house where appellant was present, toward a group in which Navarette was present.
On the evening of the murders, appellant had a series of confrontations with Navarette. According to passengers in appellant's car, appellant chased Navarette's car through their neighborhood. At one point, appellant got out of his car in an alleyway and exchanged taunts with Navarette. When appellant drove away, Navarette and his friends threw something at his car. Appellant and his passengers got out, checked the car, and then drove away, and appellant called someone on his cell phone.
According to a passenger, he told the person on the phone that he had a problem with Navarette and needed a favor. Appellant then picked up a man who carried a shotgun and had a hankerchief over his face. The man got in the backseat and they drove back to where they had last seen Navarette, which was Ruiz' house. The man racked the shotgun, the window went down, and the man pointed the shotgun toward the house. Appellant slowed down. Ruiz came out of the house with his palms raised. Appellant said, "There he is, shoot," or words to that effect. The man with the shotgun fired. The blast killed Ruiz and his mother, who had followed him out of the house, pleading with him to come back inside.
The defense theory was that the shooter acted independently. There was evidence that appellant consumed alcohol before the shooting. According to appellant's passengers, appellant drank beer with them before the shooting and they all went to a bar for drinks before they saw Navarette's car. Video surveillance confirmed their presence at the bar.
The court gave the standard aiding and abetting instruction, requiring proof that appellant had (1) knowledge of the perpetrator's unlawful purpose and (2) specific intent to facilitate commission of the crime. (CALCRIM No. 401) The court also gave, without objection, a modified instruction on the degrees of murder. (CALCRIM No. 521.) It replaced the word "defendant" with "gunman," instructing the jury that "[i]f you decide that the defendant has aided and abetted the commission of murder, you must decide whether it is murder of the first or second degree. [¶] It is first degree murder if the People have proved that the gunman acted willfully, deliberately and with premeditation. . . . [¶] All other murders are of the second degree." (Italics added.)
During deliberations, the jury asked whether, if it decided that appellant aided and abetted murder, it should focus solely on the gunman's state of mind when determining the degree of murder. It wrote, "Once deciding 1st or 2nd degree, (after finding defendant aided [and] abetted) are we strictly focusing on the gunman and not [appellant] when looking at the intent, etc." (Original emphasis.) The court responded that the jury should focus only on the gunman's state of mind to determine the degree of murder, on the appellant's state or mind to determine whether he aided and abetted murder, and the appellant's state of mind to determine whether the special circumstances were true.
The court gave the standard limiting instruction on evidence of voluntary intoxication in a homicide trial. (CALCRIM No. 625). The court did not instruct on voluntary manslaughter. Defense counsel requested an "imperfect self-defense manslaughter" instruction which the trial court refused, finding that "the gesture of an unarmed man in front of his home, in my view, does not sufficiently present a scenario that a jury could reasonably conclude that someone acted in self-defense." The court instructed the jury on second degree murder under the natural and probable consequences doctrine, but the prosecutor argued that there was no evidence of anything other than intent to kill. The defense argued that the gunman acted independently of appellant.
The court instructed the jury with a modified version of CALCRIM No. 403 that it could find appellant guilty of second degree murder if he aided and abetted an assault with a firearm and a reasonable person in his position would have known that an unlawful killing was a natural and probable consequence.
DISCUSSION
Instruction on Mental State for Aiding and Abetting
First Degree Premeditated Murder
We agree with appellant that the trial court's modification of CALCRIM No. 521, in which it substituted the word "gunman" for "defendant," misstated the law because it required the jury to find appellant guilty of the same level of offense as the gunman, irrespective of whether appellant shared the gunman's mental state of premeditation and deliberation. (§§ 187, subd. (a), 189; People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Appellant did not forfeit his contention by failing to object because the instruction misstated the law. (People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) Neither did counsel invite the error because his comment, "I think that's probably the best way to accomplish [it]," did not demonstrate a conscious and deliberate tactical choice. (People v. Lucero (2000) 23 Cal.4th 692, 723.) We conclude, however, that the error was harmless beyond a reasonable doubt because the jury necessarily determined that appellant acted with intent to kill, premeditation, and deliberation, under other instructions. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165.)
Appellant's convictions for aiding and abetting first degree premeditated murder required proof that he personally premeditated and deliberated. (§§ 187, subd. (a), 189; People v. McCoy, supra, 25 Cal.4th at p. 1120.) First degree premeditated murder requires proof that the killing was "willful, deliberate, and premeditated." (§ 189.) An aider and abettor's liability is based on his "own mens rea, not the other person's." (McCoy, at p. 1120.)
The necessary mental state for aider and abettor liability has two prongs: (1) knowledge of the criminal purpose of the perpetrator, and (2) intent to commit, encourage, or facilitate commission of the offense. (People v. McCoy, supra, 25 Cal.4th at p. 1118.) When the prosecution pursues aider and abettor liability for first degree murder on an intent-to-kill theory, as it did here, "the aider and abettor must know and share the murderous intent of the actual perpetrator." (Ibid.) Thus, the aider and abettor may be found guilty of a greater or lesser level of homicide related offense than the perpetrator, depending on whether the aider and abettor and the perpetrator have the same mental state. (Id. at pp. 1122 [aider and abettor may be guilty of first degree murder although perpetrator is guilty of voluntary manslaughter, where perpetrator alone presents imperfect self-defense evidence]; People v. Nero (2010) 181 Cal.App.4th 504, 507 [aider and abettor may be guilty of voluntary manslaughter although perpetrator is guilty of second degree murder]; People v. Samaniego, supra, 172 Cal.App.4th at p. 1164 [aiders and abettors may be guilty of greater or lesser homicide offenses if perpetrator is guilty of first degree murder]; People v. Woods (1992) 8 Cal.App.4th 1570, 1577-1578 [aider and abettor may be guilty of second degree murder if perpetrator was guilty of first degree murder].)
We measure the effect of the erroneous instruction by using the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24, because the instruction misstated an element of the charged offenses in violation of appellant's right to jury trial guaranteed by the federal Constitution. (People v. Williams (2001) 26 Cal.4th 779, 797.) The error is harmless only if, after thorough review of the record, we determine beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Ibid.)Our review of the record, particularly the jury's findings under other instructions, persuades us beyond a reasonable doubt that the jury verdict would have been the same absent the error.
Appellant contends that the erroneous instruction was prejudicial because it prevented the jury from finding him guilty of a lesser homicide offense than the perpetrator, regardless of appellant's own mental state. He points out that there was evidence that he had consumed alcohol before the shooting and argues that this may have affected his mental state. We disagree because the jury necessarily found that appellant had the essential mental state for first degree murder under other instructions. (§ 190.2, subd. (c); People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.)
The jury necessarily found that appellant intended to kill under the special circumstances instruction. (CALCRIM No. 702.) The court instructed the jury that it could only find the multiple victim special circumstances allegation true if appellant personally "acted with the intent to kill." The jury found the allegation true. The finding that appellant intended to kill also necessarily established that he acted willfully. (People v. Lee (2003) 31 Cal.4th 613, 624; People v. Moon (2005) 37 Cal.4th 1, 29.)
The court also instructed on the natural and probable consequences theory of murder, although the prosecution did not argue that theory.
The jury necessarily found that appellant acted deliberately and with premeditation under the aiding and abetting instruction. (CALCRIM No. 401.) The jury was instructed that "[t]o prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that : 1. The perpetrator committed the crime; 2. The defendant knew that the perpetrator intended to commit the crime; 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime . . . ." The jury's finding that appellant aided and abetted murder required a finding of premeditation and deliberation on his part. "It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required." (People v. Samaniego, supra, 172 Cal.App.4th at p. 1166.)
Instruction on Voluntary Manslaughter and Imperfect Self-Defense
Appellant contends that the court should have instructed on voluntary manslaughter because there was substantial evidence to support a finding that the shooter had an actual but unreasonable belief that lethal force was necessary for self-defense. We disagree because the shooter's mental state was irrelevant to determining whether appellant acted with malice. As we have explained, the aider and abettor's liability is based upon the physical acts of the perpetrator and the aider and abettor's own mental state. Further, there is no substantial evidence from which a jury could conclude that appellant personally had an actual but unreasonable belief that lethal force was necessary to defend himself.
The trial court's constitutional obligation to instruct on the defense theory of the case includes those defense doctrines which reduce offenses to lesser-included offenses. (People v. Breverman (1998) 19 Cal.4th 142, 157.) Imperfect self-defense may negate malice, reducing an intentional and unlawful killing from murder to voluntary manslaughter. (People v. Barton (1995) 12 Cal.4th 186, 199.) When a defendant is charged with murder, the trial court must instruct on imperfect self-defense whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim with the unreasonable but good faith belief of having to act in self-defense. (Id. at pp. 200-201.) We review de novo a decision not to give such an instruction. (People v. Waidla (2002) 22 Cal.4th 690, 733.)
Actual but unreasonable belief need not be established by direct testimony; substantial circumstantial evidence is sufficient. (People v. DeLeon (1992) 10 Cal.App.4th 815, 824.) Substantial evidence means evidence that, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant's guilt. (People v. Salas ( 2006) 37 Cal.4th 967, 982-983.) Appellant points to evidence that Navarette engaged in a game of "chicken," that Ruiz and appellant exchanged verbal threats in the alley, and that Navarette or his companions threw a brick or rock or bottle at appellant's car, which his passengers initially thought was a shot. However, the evidence is uncontradicted that all of these events occurred before appellant and his passengers got out and checked the car and then safely drove away before picking up the gunman and returning to Ruiz' house. One of appellant's passengers did testify that he was scared when they drove back because he "thought they were going to shoot at us," but appellant was driving. It was appellant who, after reaching a place of safety, voluntarily returned to the area of potential danger, and escalated the confrontation by bringing a gunman. No substantial evidence would have supported a finding that Ruiz' gesture of lifting his open palms actually caused appellant to fear imminent infliction of great bodily harm or death. (People v. Barton, supra, 12 Cal.4th at pp. 200-201.) No substantial evidence in the record supports a finding that he had an actual belief that lethal force was necessary in his defense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
YEGAN, Acting P.J. PERREN, J.
Patricia M. Murphy, Judge
Superior Court County of Ventura
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.