Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210971
ELIA, J.SIXTH APPELLATE DISTRICT
A jury found appellant guilty of first degree murder and found true firearm use and street gang allegations. (Pen. Code, §§ 187, 12022.53, subds. (b-d), 186.22, subd. (b)(1)(c).) The trial court sentenced him to a state prison term of 50 years to life. Appellant contends that the trial court erred in instructing the jury about the natural and probable consequences theory for imposing liability for murder on an aider and abettor and in admitting evidence of appellant's prior conviction. We reverse.
The Trial
Sandra Ramirez testified that in December 2003 she was living with Nelson Mayorga and his parents on David Avenue in San Jose. On the night of December 22, 2003, she and Mayorga had visited her aunt on Cadillac Street and were walking back to their David Avenue apartment. As they waited for the traffic light to change, she saw a gray car with some people in it coming towards her that slowed down and made a turn. The driver, appellant, "pulled his head out of the car." He was "making a face like he was trying to say or do something." He was staring at Ramirez and Mayorga. Ramirez thought that "the people in the car looked like they were just out driving around and having fun." Mayorga told Ramirez to ignore the car and just keep walking.
When Ramirez and Mayorga reached the bottom of the stairs to their apartment, she saw the car again. It was "crawling" by the apartment building. When they reached the top of the stairs, Mayorga tried to open the front door. Bobby Gonzales, dressed in black and wearing a ski mask, appeared on the landing and started shooting Mayorga. Mayorga fell, then knocked Ramirez down and tried to cover her. Gonzales ran away. Mayorga died from multiple gunshot wounds.
Justin Frutos was on David Avenue visiting his grandmother and cousins that night. He saw someone dressed in black get out of the passenger side of the car. The man walked down the street and turned into the apartments and the gray car drove away. Frutos heard seven to 10 gun shots. The car returned and the man ran to the car with one hand in his pocket telling Frutos, "I think there's somebody shooting." The man got into the car and it sped off. Edwardo Diaz was on David Avenue when he saw a car drive by his house. The car made a slow U-turn in front of his house. When the car reached the front of an apartment building, a man ran to it and jumped in.
The prosecution introduced into evidence recordings made by the Santa Clara County Jail officials of several telephone calls in early April 2004, after appellant's arrest. When asked by his mother-in-law why the police were charging him with murder, appellant answered "because of the thing that I was the driver." Christina Lopez, appellant's wife, called and cautioned appellant not to make a statement to the police. She asked appellant, "Why can't Bobby take the fucking blame for it anyway? He's the one that did it!" Appellant answered, "I don't know." Appellant suggested to his wife that he was having problems with the police because "I was involved and I'm a horseshoe member." Lopez commented that the police "didn't have Bobby. They didn't even know it was Bobby I bet. You helped them out and they still want to fuckin jack you? That ain't cool." Appellant said, "I don't know how it's going to work, but they're going to take all that into consideration or some shit." Lopez then said, "Yeah, but when you're driving down the street and your friend got off, you didn't know what he was going to do," and appellant stated, "I know that." She said, "You didn't even know when he left, yeah, he might have got back in your car, but you were scared. You didn't know what happened." Appellant responded, "Yeah, I know." Lopez said, "You didn't know what to expect. I mean, that's it. You don't tell them nothing about scraps . . . ."
"They" may have indeed taken appellant's cooperation into consideration. Following his conviction, appellant had new counsel bring a motion for a new trial. One of the grounds for the motion was trial counsel had "failed to adequately represent Mr. Lopez when he failed to counsel him privately and at length about a beneficial proposed pretrial offer to settle." The motion stated that when trial counsel received "an offer to settle this case for a determinate sentence of 20 years in prison," trial counsel was not adequately prepared to evaluate it and did not take sufficient time to discuss it with appellant.
In another call, Lopez said that she had told her cousin that appellant "took his friends with him" because they were "showing [appellant] where the pizza place was." She said that appellant's friend had told him where to turn and then his friend had said, "yeah there is a lot of scraps down this street." Lopez said, "But I mean when you turned you didn't know that that's the reason he wanted you to turn. You were just, he was the one telling you where, which way to go." Appellant responded, "Uh huh." In another call, Lopez told appellant that Gonzales's lawyer was going to defend Gonzales on the basis that appellant and Malik Aliube, the other man in the car, were "pressuring him to do it."
Bobby Gonzales's motion to sever his case from that of appellant was granted by the trial court after it was determined that Gonzales's statement to the police in support of his duress defense that "he was the shooter, but he didn't want to do the shooting, and he was put up to it by the other people in the car" should not be admitted in a joint trial.
San Jose Police Officer Gregory Lombardo testified as an expert on Hispanic criminal street gangs. He said that the two main rival gangs are the Nortenos and the Surenos. Nortenos refer to Surenos by the derogatory term "scrap." Nortenos use the term "scrap hunt" to describe going "out to look for Sureno gang members to attack." This hunt is not limited to Sureno members, but may include "people of Mexican descent if they see them and think they're the type of person who doesn't speak English." David Avenue is known for its large population of Sureno gang members.
Vario Horseshoe is a Norteno criminal street gang, and Lombardo testified about various crimes committed for the benefit of the gang. Lombardo testified to information, including field identification cards, photographs, and tattoos, that supported his opinion that in December 2003 appellant was a member of the Vario Horseshoe gang. He testified that Malik Aliube was also a member of Vario Horseshoe. Appellant and Aliube were members of the sixth generation of the gang. Lombardo testified that Bobby Gonzales was a newer member of the gang, the seventh generation. The seventh generation members "have to prove themselves to the higher generations. They have to show that they're loyal to the gang by committing acts of violence in front of or in association with the fifth and sixth generation." A "crime-in" is when "a person commits a crime to get into the gang." Lombardo testified that Vario Horseshoe members would never "send a 16-year-old unarmed associate wannabe or even a gang member out into an area like David Avenue, in that area near Cadillac by himself unless he was armed." Based on a hypothetical incorporating the evidence in this case, Lombardo was of the opinion that the shooting was done for the benefit of the Vario Horseshoe gang.
John Bustos testified that he was appellant's wife's cousin and lived with appellant and his wife along with other relatives. He described appellant as a family man. Bustos, along with Lopez and appellant, was at Babe's Bar and Grill to watch the Raiders game on December 22, 2003. He saw Bobby Gonzales at Babe's and testified that Gonzales later came over to the house but did not enter. Aliube came to the house but did not enter. Bustos testified that he overheard a conversation between appellant and his wife in which "they were just talking about ordering a pizza." Lorraine Aguirre testified that she was at Babe's the night of December 22. She, her boyfriend Mike Valdez, and her daughter all left Babe's at the same time appellant did and went to his house. Appellant, Valdez, and Lopez asked Aguirre to pick up the pizza but she declined. When appellant left to get the pizza, two other people got into his car.
Christina Lopez testified that Valdez had "a lot of gang tattoos on his body."
Christina Lopez testified that she and appellant had two children and were married in September 2002. On December 22, 2003, she left work early to go to Babe's to watch the Raiders game. She drove home and appellant arrived home a few minutes later. Aliube and "two other boys," one of them possibly Bobby Gonzales, came from a different direction toward her home but did not enter. Lopez called Little Caesar's to order pizza and sent appellant to pick it up. Appellant arrived home with the pizza about 30 to 40 minutes later. When he returned, he was "just quiet."
Lopez indentified over 20 photographs of clothing items that represented appellant's entire wardrobe. She described his tattoos, including one that said "WSSJ" on his chest and "HS" on his arm. She said that when she began living with appellant in 1997, he had "a lot of friends" that were members of Vario Horseshoe. By December of 2003, appellant had "stopped hanging out with his friends and became a family man."
Arthur Valdez testified that he was appellant's parole agent in September 2003. He went to appellant's home and did not see "any gang-related indicia inside his house." When appellant came to Valdez's office, appellant was wearing an Indianapolis Colts hat with a horseshoe symbol on it and a horseshoe ring.
Appellant called other witnesses, including a friend of his wife, his stepfather, and his step-grandfather, all of whom had been born in Mexico, to testify that appellant bore no ill will toward Mexican nationals.
Natural and Probable Consequences Instruction
Appellant contends, "The instruction defining liability for murder based on a natural and probable consequence theory erroneously permitted the jury to base a conviction for murder on findings that (1) murder is a natural and probable consequence of assault with a firearm and (2) appellant aided and abetted a simple assault but did not aid and abet an assault with a firearm."
The trial court told the jury that appellant "may be found guilty of murder under aiding and abetting if the perpetrator committed murder and the defendant aided and abetted that crime . . . . [o]r if the perpetrator committed an assault or an assault by means of a firearm and the defendant aided and abetted either or both of those crimes and murder is a natural and probable consequence of the crimes of assault and/or assault with a firearm."
The trial court told the jury, "To prove that the defendant is guilty of murder, the [P]eople must prove that, one, the perpetrator is guilty of an assault or an assault with a firearm; two, during the commission of an assault or an assault with a firearm, the crime of murder was committed; and under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of the assault or the assault with a firearm." The court defined a natural and probable consequence. The court then gave the part of the instruction, contained in CALCRIM No. 403, that appellant challenges here. The court said, "The [P]eople are alleging the defendant originally intended to aid and abet either an assault or an assault with a firearm. The defendant is guilty of murder if you decide that the defendant aided and abetted one of these crimes and that murder was the natural and probable result of one of these crimes. [¶] . . . However, you do not need to agree about which of these two crimes the defendant aided and abetted." (Italics added.)
Appellant criticizes this instruction because, "It allowed the jury to conclude that appellant aided and abetted only a simple assault (but did not aid and abet an assault with a firearm) and to convict appellant of murder even if they concluded that murder was not a natural and probable consequence of simple assault but was a natural and probable consequence of assault with a firearm."
Respondent argues, "It makes little sense to interpret the same phrase in a single sentence to refer to two separate target offenses. The use of parallel phrasing in the disputed instruction clearly conveyed that liability under the natural and probable consequences doctrine required a finding that the defendant aided and abetted the same target offense that foreseeably resulted in the charged offense." Respondent's argument gives a lay juror an enormous amount of credit for a highly sophisticated understanding of a very difficult area of homicide law. Whether or not someone with respondent's experience would consider the reading to make "little sense," jurors in complicated cases are fanatically literal in interpreting instructions. Aiding and abetting a murder under a natural and probable consequences theory is about as complicated as criminal law gets. As appellant points out, "The phrase 'one of these crimes' logically refers to either of these two target crimes. If the instruction were to be construed as referring to the same target crime, it would not contain a second use of the phrase 'one of these crimes.' Instead the second use of the phrase 'one of these crimes' would be replaced by the phrase 'that crime.' " This reflects the phrasing contained in CALJIC No. 3.02, which read, "You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of [murder] was a natural and probable consequence of the commission of that target crime ." (Italics added.) This language reflects the definition of the natural and probable consequence doctrine as described in People v. Prettyman (1996) 14 Cal.4th 248, which requires that the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. (Id. at pp. 262, 267.)
Respondent argues that appellant has forfeited this issue by failing to object to CALCRIM No. 403 in the trial court. At the conclusion of the instructional conference, when asked to comment, defense counsel remarked, "Other than to say the new instructions set me back some, and I'm just – seems like I should have an objection, although I can't think of one." However, as our Supreme Court explained People v. Smithey (1999) 20 Cal.4th 936, 976, footnote 7, a criminal defendant's claim that an instruction misstated the law or violated his right to due process "is not of the type that must be preserved by objection." We therefore address the merits of appellant's contention.
Prettyman defined the elements of aiding and abetting in the context of the natural and probable consequence doctrine as: (1) that the defendant acted with knowledge of the unlawful purpose of the perpetrator; (2) that the defendant acted with the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) that the defendant, by act or advice, aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. (People v. Prettyman, supra, 14 Cal.4th at pp. 262, 267.)
Respondent argues that, because the trial court instructed with CALCRIM No. 640, there is no likelihood that the jury would have interpreted the instruction in the manner appellant identifies. That instruction told the jury, "If you all agree that the People have proved that the unlawful killing was first degree murder and that the defendant knowingly aided and abetted that crime (as defined elsewhere in these instructions) or a specified lesser crime for which murder is a natural and probable consequence (as that term is defined elsewhere in these instructions), complete the verdict form stating that the defendant is guilty of first degree murder." Respondent states, "This instruction made inescapably clear that the jury was required to find that appellant aided and abetted the same offense resulting in the natural and probable consequence of murder." However, CALCRIM No. 640 specifically refers the jury to the instructions given earlier, which included the challenged portion of CALCRIM No. 403, as well as the instruction that appellant "may be found guilty of murder under aiding and abetting . . . if the perpetrator committed an assault or an assault by means of a firearm and the defendant aided and abetted either or both those crimes and murder is a natural and probable consequence of the crimes of assault and/or assault with a firearm." (Italics added.) Furthermore, the jurors had already been told that they "do not need to agree about which of these two crimes the defendant aided and abetted." Thus, a juror would not interpret CALCRIM No. 640 as modifying the incorrect language in the trial court's version of CALCRIM No. 403.
Here, nothing in the argument of counsel clarified that the target crime the jury was to find appellant to have aided and abetted must be the one with the natural and probable consequence of murder. The prosecutor argued, "Nobody got on the stand and said this wasn't a scrap hunt. But to prevent that argument from flying, the law recognizes the concept of natural and probable consequences. That is: You as an aider and abettor set something into motion like this case, you're liable for all the natural and probable consequences that occur because of your actions, because you drove the 16-year-old gang member into this area for the scrap hunt." He argued "that all we have to show is that the defendant went over there with the intent to commit an assault." On rebuttal he argued, "Now, bottom line is the law. Like I explained earlier, the law allows you to find the guy guilty even if he didn't know there was a gun in the car because if they went down there for the purpose to commit an assault, which is clear from the record, an assault is just trying to hit somebody or trying to attack somebody. That's all assault is. That the real and probable consequence of a reasonable person sitting in the defendant's seat. . . . It's a reasonable, natural, probable consequence that somebody is going to get killed."
In Prettyman, our Supreme Court recognized that there is some question about the conclusion that murder is the natural and probable consequence of aiding and abetting a simple assault. The court found that the failure to identify the target offenses in the jury instructions was error because it left open the possibility that the jury relied on simple assault as a target offense for murder, and a finding that murder is a reasonably foreseeable consequence of simple assault is not warranted absent evidence that an accomplice knew a confederate might employ deadly force in the assault. (Prettyman, supra, 14 Cal.4th at p. 267.) The court said, "If, for example, the jury had concluded that defendant Bray [the aider and abettor] had encouraged codefendant Prettyman [the perpetrator] to commit an assault on Van Camp but that Bray had no reason to believe that Prettyman would use a deadly weapon such as a steel pipe to commit the assault, then the jury could not properly find that the murder of Van Camp was a natural and probable consequence of the assault encouraged by Bray." (Ibid.)
When a jury is instructed on alternate theories of liability, some of which are legally correct and others which are not, a reversal is required unless there is a basis in the record to conclude the jury actually based its verdict on a legally correct theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Jurors are presumed to be intelligent people who are capable of understanding and following the trial court's instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) But " '[j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law . . . . When, therefore, 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.' [Citation.]" (People v. Guiton, supra, 4 Cal.4th 1116, 1125, quoting Griffin v. United States (1991) 502 U.S. 46, 59.) Here, we have no reason to believe that that the jury was able to detect the legal misstatement in the wording of the instruction on the natural and probable consequences theory. The wording of the instruction permitted the jury to convict appellant of murder based on a legally incorrect theory that appellant aided and abetted a simple assault, but did not aid and abet an assault with a firearm, and that murder is a natural and probable consequence of assault with a firearm, but not of simple assault. Because we cannot determine from the record whether the jury based its murder verdict on a legally correct theory or a legally incorrect theory, we must deem the error to be prejudicial.
Because appellant's conviction may have been based on a legally incorrect theory of guilt, we must reverse his conviction. Accordingly, we need not address his remaining contentions.
Appellant's remaining contentions are: 1) As a matter of law, the trial court committed reversible error "when it instructed the jury that appellant could be convicted of murder if he aided and abetted in the commission of a simple assault and the jury found murder to be a natural and probable consequence of that assault"; 2) "The judgment must be reversed because the instructions erroneously told the jury they could convict appellant of first degree murder if the actual killer committed first degree murder and the jury found that murder – as opposed to first degree murder – was a natural and probable consequence of the first degree murder the actual killer committed"; and 3) "The trial court committed reversible error when it permitted the district attorney to introduce evidence of a prior conviction of appellant as part of the People's proof of predicate offenses required for the street gang enhancement."
Disposition
The judgment is reversed.
WE CONCUR: RUSHING, P. J., PREMO, J.