Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a Judgment of the Superior Court of Los Angeles County No. BA 288899. Sam Ohta, Judge.
Eric R. Larson, 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, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Victor Lopez appeals from his conviction of second degree murder (Pen. Code, § 187, subd. (a)), with a true finding that a principal was armed with a firearm during the commission of a crime (Pen. Code, § 12022, subd. (a)(1)). Defendant contends insufficient evidence supports the trial court’s instruction on an alternative aider and abettor theory of liability based upon the natural and probable causes doctrine, and therefore his conviction must be reversed. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant was charged in a one-count information with the second degree murder of the victim Rodolfo Nunez, who was shot by defendant’s companion after they followed the victim by car from a bar in order to confront him about his poor treatment of defendant’s girlfriend.
On August 7, 2005, Detective Dennis Fanning of the Los Angeles Police Department went to the East 200 block of 30th Street to investigate a homicide. He saw a white Ford Bronco facing eastbound towards the middle of the street that was touching the bumper of a small white four-door car. The victim, Rodolfo Nunez, was in the driver’s seat. The victim had several gunshot wounds to his head and blood on the front of his shirt. The driver’s side window was partially rolled up and had a bullet hole in it. Detective Fanning did not find any weapons inside of the Bronco.
An autopsy of the victim disclosed he had a total of seven gunshot wounds to his head and body. The bullets had been fired from more than two feet away.
Officer Miguel Terrazas of the Los Angeles Police Department interviewed defendant. On August 18, 2005, defendant told him that on the date of the murder, he was with his girlfriend Anna Zamaripa and Juanito Gutierrez. They were discussing the victim Rodolfo Nunez, who had previously been involved with defendant’s girlfriend. Nunez had been showing up at Zamaripa’s residence and threatening her, which upset defendant. Gutierrez offered to beat the victim up or to “take him down.” Defendant understood that if they confronted the victim, one of those two things would happen. Defendant knew that Nunez always carried a gun. Defendant also knew that Gutierrez acted as a bodyguard for Anna, who was a drug dealer, and who had urged Gutierrez to show that he was protecting her.
The interview was conducted in Spanish, but transcribed into English. The transcript was not introduced at trial, but Detective Terrazas used it to refresh his recollection of the interview.
They went to the El Dorado Bar and saw the victim’s truck parked in the back. Gutierrez and defendant were in a Honda. Defendant asked Gutierrez what was going to happen next. Gutierrez told him that “there is not going to be any problem. I am just going to talk to him and I am going to tell him not to – I am just going to tell him not to tell the lady anything else or I’m going to give him a beating.” Defendant saw that Gutierrez had a gun in his waistband.
After the victim left the bar, defendant and Gutierrez, with defendant driving, followed him. The victim stopped, parked his car, and Gutierrez told defendant to “get closer.” When defendant got “to the point of where I was at the door of his truck, he said, ‘wait here.’ And when I stopped, that’s when he took out the gun and he fired.” Defendant told Officer Terrazas Gutierrez fired from inside of the Honda by sticking his hand out of the window. After the shooting, Gutierrez told him where to drive until they got on the freeway. Defendant asked what Gutierrez thought had happened to the victim because defendant had not watched the shooting. According to defendant, everything happened in less than a minute; defendant did not know Gutierrez intended to fire the gun.
During a second interview, defendant told Officer Terrazas that the victim was a “bad ass” and would stare people down. Defendant’s version of events at the El Dorado Bar changed; this time he told Officer Terrazas that Anna Zamaripa was with them and that she was driving the Honda. Defendant stated that Gutierrez said they would find Nunez and give him a beating and bring him down. Defendant understood this to mean they will kill Nunez. When they arrived at the bar, they parked in an alleyway behind it. Gutierrez told Anna Zamaripa to go into the bar and order a beer. They expected that Nunez would come out of the bar, and they could approach him and tell him he was “acting stupid.” Gutierrez told defendant to have the car ready. Although Gutierrez always carried a gun, defendant did not know at first whether he had it with him that night.
During the second interview, defendant stated that after they pulled up next to the Bronco when it stopped, he saw Gutierrez shoot the victim in the face. During both interviews, defendant stated several times that he did not believe that Gutierrez was going to shoot Nunez.
The court instructed the jury on two theories, aider and abettor liability for second degree murder, and aider and abettor liability based upon natural and probable consequences with the target offenses of assault with a firearm and/or discharge of a firearm into a motor vehicle. The defense did not object. The jury found defendant guilty of second degree murder, and found the firearm allegation true. (§§ 187, subd. (a); 12022, subd. (a)(1).)
DISCUSSION
Defendant contends that the trial court erred in alternatively instructing on murder based upon the target offenses of assault with a deadly weapon and discharge of a firearm from a vehicle because the target offenses were not supported by substantial evidence. Because, he contends, we cannot determine whether the jury relied on the unsupported theory to impose its verdict, we must reverse. (See People v. Guiton (1993) 4 Cal.4th 1116, 1131 (Guiton).) We conclude that because substantial evidence supported the giving of an aider and abetter instruction, there is no Guiton error.
1. People v. Guiton.
In Guiton, the court addressed the issue of when a conviction based upon a jury instruction that either was factually unsupported or legally incorrect was reversible. In so doing, the court reconciled its own opinion in People v. Green (1980) 27 Cal.3d 1 (Green) with the U.S. Supreme Court’s holding in Griffin v. United States (1991) 502 U.S. 46 (Griffin). Green held that “when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” Green held this general rule also required reversal “when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground.” (Green. at pp. 69-70.) Griffin held that while error based upon an incorrect legal theory required reversal, factual error did not where another valid basis for conviction existed. “When jurors have been left with the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence.” (Griffin at p. 59.)
Guiton harmonized Green and Griffin by observing that Griffin had “carefully distinguished between two types of cases involving insufficient evidence: (a) those in which ‘a particular theory of conviction . . . is contrary to law,’ or, phrased slightly differently, cases involving a ‘legally inadequate theory’; and (b) those in which the jury has merely been ‘left the option of relying upon a factually inadequate theory,’ or also phrased slightly differently, cases in which there was an ‘insufficiency of proof.’ [Citation.] The former type of case is subject to the rule generally requiring reversal; the latter generally does not require reversal if at least one valid theory remains.” (Guiton, supra, 4 Cal.4th at p. 1128.) Therefore, the judgment should be affirmed if supportable on a permissible theory, unless the record affirmatively shows the verdict was actually based on an improper theory. (Id. at p. 1129.)
2. Aider and Abettor Liability Under the Natural and Probable Causes Doctrine.
The law imposes liability upon all persons who are “concerned” in the commission of a crime. (Pen. Code, § 31; People v. Nguyen (1993) 21 Cal.App.4th 518, 529.) In People v. Beeman (1984) 35 Cal.3d 547, the Supreme Court discussed the mental state necessary for liability as an aider and abettor. The prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (Id. at p. 560.) Thus, an aider and abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (Id. at p. 561.)
In the case where an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense), whether the accomplice may be held responsible for that nontarget offense turns not only upon a consideration of the general principles of accomplice liability set forth, but also requires consideration of the “natural and probable consequences” doctrine. The doctrine is based on the recognition that aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion. (People v. Prettyman (1996) 14 Cal.4th 248, 260.) “‘“[T]he act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.”’” (Id. at pp. 260-261.)
The conclusion that an offense is a natural and probable consequence of another criminal plan does not require that the collateral act be specifically planned or agreed to in advance, nor must it be substantially certain to result from the commission of the planned act. (People v. Nguyen, supra, 21 Cal.App.4th at p. 530.) An objective test is used to determine whether the offense was a natural and probable consequence; this issue is a factual question to be resolved by the jury in light of all of the circumstances. “Consequently, the issue does not turn on the defendant’s subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant.” (Id. at p. 531.) It is not necessary that the principal inform the aider and abettor of his or her criminal purpose because that purpose may be apparent from the circumstances. (Id. at pp. 531-532.) Further, because an aider and abettor is liable as a principal if he or she at any time does something that directly or indirectly aids or encourages the principal in the commission of a crime, the circumstances considered in determining whether the offense was a natural and probable consequence include those leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of a crime. (Id. at p. 532.)
Here, the target offenses were assault with a deadly weapon and shooting a firearm from a vehicle. The circumstances here support the conclusion that murder of the victim was the reasonable and probable consequence of each offense. Defendant knew that part of the plan was to “take down” (kill) the victim; he and Gutierrez followed the victim in his car; and defendant knew that Gutierrez had a gun and that at the very least Gutierrez intended to beat up the victim. Under these circumstances, a reasonable person in defendant’s position would have known that at the very least violence was contemplated, and that a fatal shooting was a likely outcome of Gutierrez and defendant’s plan.
We therefore find no Guiton error. Under Guiton’s second prong, we would only reverse if the record affirmatively demonstrated that the verdict was actually based upon an improper factual theory. Such is not the case here, as the verdict would stand based upon a theory of aiding and abetting second-degree murder because defendant knew Gutierrez had a weapon and also harbored the intent to kill the victim. In addition, because the alternative theory of aiding and abetting on the theory of natural and probable consequences was also factually supported, both instructions were proper and no conceivable Guiton error could have occurred.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WILEY, J
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.