Opinion
A138550
12-23-2016
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO LOPEZ-BARRAZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR608983)
On October 6, 2011, sheriff's deputies found the lifeless body of Jose Manuel de Jesus shot once in the head and lying in the open trunk of a Dodge Intrepid parked in the parking lot of Carniceria Contreras, a butcher shop in Santa Rosa, California. The authorities pieced together a story of four men—Juan Ramon Lopez-Castillo (Ramon), Fernando Lopez-Castillo (Fernando), Jose Carraballo-Mejias (Carraballo-Mejias) and appellant here, defendant Alberto Lopez-Barraza—robbing de Jesus of boxes of marijuana, during which Fernando shot and killed de Jesus.
Ramon and Fernando are brothers. We refer to each by his first name, as designated by the parties, for the sake of clarity and mean no disrespect by doing so.
In November 2012, the Sonoma County District Attorney filed a first amended information charging defendant (as well as Carraballo-Mejias and Fernando) with a "robbery special-circumstance" murder in violation of Penal Code section 187, subdivision (a) and within the meaning of section 190.2, subdivision (a)(l7), thereby charging first degree murder pursuant to the "felony-murder rule" subject to a term of life without possibility of parole (count one); conspiracy in violation of section 182, subdivision (a)(l) to commit robbery in violation of section 211 (count two); and robbery in violation of section 211 (count three); and alleging certain sentence enhancements. Defendant was tried with Carraballo-Mejias, but before separate juries. Defendant's jury found him guilty of counts one and three and found the "robbery special-circumstance" allegation to be true, and the court sentenced defendant to a term of life without possibility of parole, plus one year.
All statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals from the judgment, contending among other things that the trial court made several prejudicial errors by improperly instructing the jury regarding the natural and probable consequences doctrine and the "robbery special-circumstance" allegation against defendant, and by allowing defendant's jury to hear surprise testimony from codefendant Carraballo-Mejias that was antagonistic to defendant's defense. We conclude there were no errors below, except that the court improperly and prejudicially instructed the jury regarding the "robbery special-circumstance" allegation. Therefore, we reverse the jury's finding this allegation to be true, vacate defendant's sentence of life without the possibility of parole and remand this matter for further proceedings consistent with this opinion. We otherwise affirm the judgment.
BACKGROUND
I.
The Joint Trial of Defendant and Carraballo-Mejias
Defendant and Carraballo-Mejias were tried jointly before separate juries for the sake of judicial economy. We first summarize the evidence initially presented to both juries.
A. Physical Evidence
After de Jesus's body was removed from the Intrepid's trunk, a .38-caliber Super spent cartridge case was found in the crevice where the trunk met the back seat. No drugs or large amounts of cash were found.
A forensic pathologist testified that de Jesus died from a gunshot wound to the head. The bullet entered the left cheek and passed through his skull, brain and skull again before lodging at the back of his head. Stippling around the entry wound indicated the bullet was fired from about a distance of eight to ten inches up to two or three feet, was of a medium caliber and was consistent with a .38-caliber Super bullet.
The police recovered a cell phone belonging to de Jesus in the Carniceria Contreras parking lot. Information from that phone led to the recovery by a road near Carniceria Contreras of Ramon's and Fernando's cell phones and two guns, one of which a firearms expert determined had fired the fatal shot.
B. Eyewitness Accounts
Customers of Carniceria Contreras on October 6, 2011, testified that they saw two men in a black Cadillac with apparently tinted windows parked in the shop's parking lot away from the other cars and that there could have been people in the Cadillac's back seat. The driver moved in and out of the car as he talked angrily on the phone. Customers inside the shop that afternoon heard a loud noise outside, like a car hitting another car, or a muffled bang. An arriving customer saw a black Cadillac parked in the parking lot, then from inside the shop saw a blue car parked in the same area and the Cadillac with at least two or three people inside it speed out of the parking lot. Another customer saw a man shot and bleeding in the parking lot and the police were called.
C. The Testimony of Elias Alfaro
A phone number listed in de Jesus's phone led police to Elias Alfaro, who testified that he and de Jesus worked together picking grapes at an area farm. De Jesus wanted money for his family in Mexico and decided to sell some marijuana. Alfaro knew Ramon from Carniceria Contreras. He arranged for de Jesus and himself to meet with Ramon and Carraballo-Mejias. De Jesus showed Ramon and Carraballo-Mejias some marijuana and said how much he planned to sell. Carraballo-Mejias spoke in English that Ramon translated into Spanish. He asked de Jesus if he could get more, de Jesus said he would find out and the meeting ended. The next day, de Jesus told Alfaro he was to meet with Ramon again, this time at Carniceria Contreras. Alfaro also was told Carraballo-Mejias was staying at a hotel.
Phone records showed multiple communications among the men involved in the incident. The records showed three calls just before 2 p.m. on the day of the incident using a cell phone tower in the area of Carniceria Contreras, and calls in the days leading up to the incident between Ramon and several others, they being Alfaro, Fernando, defendant and/or Carraballo-Mejias. Fernando's and defendant's cell phone records showed each made calls near the time of the shooting via another cell tower near Carniceria Contreras.
D. The Testimony of Sergeant Carlos Basurto
Sergeant Carlos Basurto testified that upon his arrest, defendant, after being informed of his Miranda rights, voluntarily spoke to Basurto in a recorded interview. Defendant said he lived in Hayward and worked as a waiter and a painter. He feared authorities had arrested him in order to deport him, and had a fake identification to avoid deportation. He told Basurto that on October 6, 2011, his cousin Ramon had picked him up in Hayward and invited him to come to Santa Rosa. He decided to go in order to pick up the belongings of his recently deported brother, Fortino Lopez-Barraza (Fortino).
At first, defendant denied being at Carniceria Contreras when de Jesus was shot, but then admitted he was there. He said he went there with Ramon, Fernando and Carraballo-Mejias in order to buy or sell some marijuana. He did not know of any plan to steal marijuana. He gave different answers to repeated questions regarding the shooting. At first, he said he was sitting in the back seat of the car when they arrived at Carniceria Contreras and that another car arrived almost simultaneously. Ramon knocked on the car window and told him to get out and grab some boxes; defendant did as he was told, grabbing some boxes from the trunk of the other car, the contents of which were not known to him, although they smelled like "weed." As he was walking away from one of the boxes he heard a gun go off and saw Fernando standing there with a gun in his hand, saying, " 'I killed him. I killed him.' "
Eventually, Basurto left the room, learned from Ramon that defendant had been out of the car and hiding behind the building, then Basurto returned to the room. Defendant then said that when they arrived at Carniceria Contreras, Ramon told him and Fernando to wait behind the building "[i]n case there were problems," which they did. Defendant did not know they were going to steal marijuana, but knew they were there to either buy or sell it. He denied being armed or seeing anything thrown out the car windows as the group drove from the scene. He felt like he had been used.
E. The Testimony of Anna Velasquez
Anna Velasquez, on probation after pleading guilty to being an accessory after the fact to the murder, testified under a grant of immunity. At the time of the incident, she, Ramon, Fernando and defendant's brother, Fortino, lived in Petaluma. Defendant lived in Hayward and visited.
Velasquez testified that on the morning of October 5, 2011—the day before the incident—she was at home smoking methamphetamine with Fernando and defendant when Ramon came in and said something like, " 'We have to go fix everything for tomorrow.' " A man named Bastidas, who was Ramon's brother-in-law, had phoned Ramon that day and told him to get ready, and she, Ramon, Fernando and defendant talked about getting everything ready for the next day. Ramon left with Fernando and defendant, saying they were going to meet a man to make sure everything was ready for the next day.
The next morning Velasquez, Fernando, and defendant again smoked methamphetamine together at her and Fernando's home. Later, Velasquez saw Fernando, Ramon, and defendant loading guns. She had seen defendant with a gun the day before and this time he had what looked like a nine-millimeter gun. Fernando had a gun too. At one point Fernando and then Ramon and defendant pulled back the slides of their guns and Fernando said, " 'We gotta go.' " Ramon said they had to pick up "Cuba," meaning Carraballo-Mejias. Fernando told Velasquez to wait at home. The three men left in the black Cadillac and were gone all day.
Velasquez said she called Fernando most of the day but did not reach him. At 8:00 or 9:00 p.m., she called defendant, who said something had gone wrong. Fernando took the phone and told Velasquez to gather their things, stay home and not answer the door. He returned in a van driven by someone she did not know. Defendant and Carraballo-Mejias were inside the van. She and Fernando put their things in the van and the group drove off. They dropped off Carraballo-Mejias and drove to Hayward.
Velasquez further testified before defendant's jury only. She said she met defendant about five or six months before the shooting and had witnessed Fernando and Ramon discussing previous marijuana robberies with him before the incident. Some weeks before the shooting, Fernando and Ramon talked in front of defendant about when she, Fernando, and Ramon met a man as arranged outside one store, then drove to another location, where the man was going to bring marijuana. There, the man got into the back seat next to Velasquez and said he wanted to see the money. Instead of showing him money, Fernando beat the man in the head. The man bled badly, screamed and tried to get out of the car. Ramon held the door shut, then relented and the man got out and ran away. They did not get any drugs. Upon hearing this story, defendant said something like, " 'Oh my god, you guys are crazy.' "
Velasquez testified that another time Fernando and Ramon talked in front of defendant about Velasquez and Fernando stealing half a kilo of methamphetamine from her godfather a few weeks before the shooting. Fernando laughed about holding the man by the pants while the man jumped around, and about shooting the back seat of the black Cadillac. Upon hearing this story, defendant said something like, " 'You guys are nuts.' "
Velasquez said she had smoked methamphetamine every day for months before the shooting but had stopped by the time of trial. She admitted lying repeatedly to police in the past and regarding this case. She acknowledged previously telling police that defendant did not know about the robbery beforehand, that it was "a good question" whether he ever heard Fernando and Ramon talk about their prior drug robberies, and that only Carraballo-Mejias was armed on the day of the incident.
F. The Testimony of Carraballo-Mejias
The prosecution presented evidence against Carraballo-Mejias during its case-in-chief against him that was not presented to defendant's jury. After the prosecution presented all of its evidence against Carraballo-Mejias, his attorney called Carraballo-Mejias as a witness to testify before both juries. Defendant's counsel objected on multiple grounds that defendant's jury should not hear Carraballo-Mejias's testimony, which objections the court overruled. Carraballo-Mejias then testified, including before defendant's jury, certain exhibits were entered into evidence for defendant's jury to consider, and the officer who interviewed Carraballo-Mejias upon his arrest also testified, all of which we will soon discuss further.
G. Defendant's Evidence
Defendant presented a metal painting shop owner's testimony that he worked for her under another name and the parties' stipulation that in September 2011, Fortino was arrested and charged with alcohol-related reckless driving, convicted and sentenced. Also, a Petaluma resident testified that she rented a room for a short time to a Mexican man who was defendant's brother. Defendant, Ramon, and a boyfriend and girlfriend visited the brother from time to time; one day, defendant picked up his brother's belongings and said he had returned to Mexico.
H. Verdict, Sentencing and Appeal
The jury found defendant guilty of felony murder and robbery (counts one and three), found the accompanying sentence enhancements to be true, and found defendant not guilty of conspiracy to commit robbery (count two). The court sentenced defendant to life without possibility of parole plus one year for count one, and stayed the sentence for count three.
Defendant filed a timely notice of appeal. During the pendency of this appeal, we requested supplemental briefing, and received it, from the parties regarding defendant's "robbery special-circumstance" contentions.
DISCUSSION
I.
The Trial Court Did Not Err in Instructing the Jury Regarding the Natural and
Probable Consequences Doctrine.
Defendant argues the trial court prejudicially denied him his rights to effective assistance of counsel, due process and a unanimous jury verdict on all elements of the charged crimes by not instructing the jury pursuant to CALCRIM No. 403 on the doctrine of natural and probable consequences. This omission, he contends, allowed the jury to consider an improper theory of culpability. We disagree. The court did not need to instruct the jury on this doctrine because the prosecution's theory of the case was that defendant was guilty of a first degree murder under the felony-murder rule, and not on any independent natural and probable consequences theory. Further, to the extent defendant argues the court's instructions were at least ambiguous on the subject, we conclude there was no reasonable likelihood that the jury misconstrued it.
The prosecution contended defendant was guilty under the felony-murder rule as either a participant or aider and abettor in the robbery of de Jesus, or as a conspirator in planning the robbery. Accordingly, the court instructed the jury on the felony-murder rule under CALCRIM No. 540B, as well as the law regarding aiding and abetting under CALCRIM Nos. 400 and 401.
The court instructed the jury under CALCRIM No. 540B that "defendant may be guilty of murder under a theory of felony murder even if another person did the act that resulted in the death," so long as the prosecution proved: "defendant committed, aided and abetted, or was a member of a conspiracy to commit Robbery"; "defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more members of the conspiracy commit Robbery"; "[i]f . . . defendant did not personally commit Robbery, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, personally committed Robbery"; "[w]hile committing Robbery, the perpetrator caused the death of another person"; and "[t]here was a logical connection between the cause of death and the Robbery" that involves "more than just their occurrence at the same time and place." Further, "[a] person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent."
The court further instructed, "If you find defendant was only a co-conspirator, and did not aid or abet the Robbery, you must also find that the act causing the death was a natural and probable consequence of the plan to commit Robbery." "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence." Defendant does not argue that this reference to "natural and probable consequence" and its accompanying explanation were inadequate for their limited purpose and in any event he was acquitted of conspiracy to commit robbery, so we do not discuss them further.
Using CALCRIM No. 401, the court instructed that defendant was guilty as an aider and abettor if the prosecution showed the perpetrator committed the crime; defendant knew the perpetrator intended to do so; before or during the commission of the crime, defendant intended to aid and abet the perpetrator in committing the crime; and defendant's words or conduct did in fact aid and abet the perpetrator.
Defendant's "incomplete instructions" argument begins with his reference to that part of the court's jury instruction under CALCRIM No. 400 which states: "Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." Although this part of the instruction does not actually refer to the natural and probable consequences doctrine, defendant contends it somehow indicates the court believed there was sufficient evidence for the jury to convict under that doctrine rather than under aider and abettor law pursuant to CALCRIM No. 401, and that the instruction was incomplete because the court did not also instruct on the doctrine itself pursuant to CALCRIM No. 403.
A trial court is under a sua sponte obligation to instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) CALCRIM No. 403, regarding natural and probable consequences, provides in relevant part that a defendant is guilty of a target offense identified by the court if, during the commission of that offense, a coparticipant committed a non-target offense identified by the court and, under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of this non-target offense was a natural and probable consequence of the commission of the target offense. (CALCRIM No. 403.)
Further, "when the prosecution relies on the 'natural and probable consequences' doctrine to hold a defendant liable as an aider and abettor, the trial court must, on its own initiative, identify and describe for the jury any target offense allegedly aided and abetted by the defendant." (People v. Prettyman (1996) 14 Cal.4th 248, 268.) If the court elects on its own to instruct on the "natural and probable consequences" doctrine, it has a duty to identify the target offense as well. (Id. at p. 270.)
Defendant posits that the jury, having never been told a target crime for the court's incomplete instruction on the "natural and probable consequences" doctrine pursuant to CALCRIM No. 400, was free "to create homespun theories of culpability" for murder. This included basing a murder conviction on an uncharged target offense like the brandishing of a weapon, as suggested by the prosecutor in discussing jury instructions with the court outside the presence of the jury.
We disagree. "[C]laims of instructional error are examined based on a review of the instructions as a whole in light of the entire record." (People v. Lucas (2014) 60 Cal.4th 153, 282, citing Estelle v. McGuire (1991) 502 U.S. 62, 72.) It is apparent from our review of all the trial court's jury instructions that the portion of its aider and abettor instruction cited by defendant was intended not as a reference to the "natural and probable consequences" doctrine, but to the possibility that defendant, if found guilty of robbery, could be found guilty of murder under the felony-murder rule. The prosecution relied entirely on, and the trial court instructed about, the felony-murder rule under CALCRIM No. 540B, and in that instruction the court specifically referred to robbery as the crime upon which culpability for murder should be based. The court gave no instruction and the prosecutor made no argument about any other crime, such as the brandishing of a weapon.
Defendant points out that the prosecutor, in discussing with the court possible jury instructions regarding an aider and abettor, asserted that if a person brandished a firearm and someone was killed, the killing could be a natural and probable consequence of this lesser crime. The court indicated it did not necessarily agree and suggested the prosecutor provide cases in support of her theory. However, defendant does not indicate that the parties or the court further considered the matter, and we have found no indication in the record that they did so. Defendant's argument falls apart in the absence of any argument or instruction that invited the jury to base a murder verdict on an independent natural or probable consequences doctrine.
A further indication that an instruction on the probable and natural consequences doctrine would have been inappropriate is that the prosecution pursued only a first degree felony-murder count against defendant. A charge of murder that is the probable and natural consequence of participating in another crime is susceptible to a second degree murder conviction only. (People v. Chiu (2014) 59 Cal.4th 155, 166-167.)
Defendant's argument also suggests that the portion of the court's aider and abettor instruction he cites was so ambiguous that the jury could have found defendant guilty of a lesser uncharged crime, such as brandishing a weapon, as a basis for finding him guilty of murder. Assuming for the sake of argument that the instruction was ambiguous, we must determine whether there is a "reasonable likelihood" that the jury misunderstood it so as to apply it incorrectly if we are to find defendant's constitutional due process rights were violated. (People v. Kelly (1992) 1 Cal.4th 495, 525, citing Estelle v. McGuire, supra, 502 U.S. 62, 72.) A "reasonable likelihood" is something less than more probable than not; it includes the reasonable "possibility" that a juror misinterpreted an instruction. (Boyde v. California (1990) 494 U.S. 370, 380.) We "must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner." (People v. Wilson (2008) 44 Cal.4th 758, 803.)
We conclude there was no reasonable likelihood the jury incorrectly applied the instruction as defendant contends. Along with what we have already concluded about the import of the instructions as a whole, defendant does not identify any charge, evidence argument or instruction presented to the jury that gave it any reason to rely on a "brandishing of a weapon" theory. While there was evidence that defendant armed himself with a gun on the day of the incident and, as suggested by his statement to police and Carraballo-Mejias's testimony, went with Fernando (who Carraballo-Mejias's testimony and the circumstances of the shooting indicate was armed) to hide in the back of Carniceria Contreras shortly before de Jesus's arrival, defendant does not identify any evidence, or any prosecutor argument, indicating defendant brandished a weapon in de Jesus's presence. Rather, the evidence indicates defendant and Fernando emerged from behind Carniceria Contreras after de Jesus arrived, defendant went over to Ramon and de Jesus and, as instructed by Ramon, defendant took boxes from de Jesus's car trunk while Fernando, brandishing a gun, confronted de Jesus.
In short, defendant's instructional error argument is without merit. In light of our conclusion, we do not address the People's harmless error analysis.
II.
The Trial Court Did Not Err in Allowing Defendant's Jury to Hear Carraballo-
Mejias's Testimony.
Defendant next argues the trial court prejudicially violated his constitutional rights to due process and effective assistance of counsel when it refused to excuse his jury from hearing codefendant Carraballo-Mejias's testimony, which, according to defendant, was antagonistic to defendant's defense. Defendant further asserts his rights were violated because he received no prior notice that Carraballo-Mejias would testify or discovery regarding Carraballo-Mejias's testimony, and he, his counsel and/or his jury were not present for all of the prosecution's presentation of evidence against Carraballo-Mejias. Defendant contends that under these circumstances, the court, by allowing Carraballo- Mejias to testify before defendant's jury, improperly enabled Carraballo-Mejias's counsel to act as a private prosecutor against defendant and to present evidence that was extremely prejudicial to defendant's case. We disagree. Carraballo-Mejias's testimony was not particularly antagonistic to defendant's position; indeed, some of it supported defendant's assertion that he understood the group was there to buy or sell marijuana. Further, as we will discuss, California law allows testimony by codefendants antagonistic to each other in the course of joint trials in circumstances like those in this case.
This is a somewhat different argument than that made by defendant's trial counsel below and, therefore, has been arguably forfeited in whole or in part by defendant. (See People v. Partida (2005) 37 Cal.4th 428, 433-434.) However, the People do not argue forfeiture and, therefore, we do not consider it further.
A. The Proceedings Below
Prior to trial, defendants moved for severance of their trials. In opposition to a complete severance, the prosecutor asserted that each of the four defendants should have a separate jury because she intended to introduce statements made by each of them to the police and that, with separate juries, none of the defendants' "constitutional rights will be trampled upon." Because of courthouse space limitations, she suggested two trials, each before two juries. The trial court agreed, citing judicial economy. It proceeded with a joint trial of defendant and Carraballo-Mejias before separate juries.
The trial court excused defendant's jury for those aspects of the prosecution's case that related only to Carraballo-Mejias. As a result, defendant's jury did not hear the prosecution's presentation of testimony from Sergeant Shannon McAlvain regarding Carraballo-Mejias's arrest, from Carraballo-Mejias's girlfriend, Jamie Barboza, about her phone calls with Carraballo-Mejias while he was in jail, and from Deputy Jesse Hanshew about an interview with Barboza. The record indicates that defendant and his counsel were present for Barboza's and Hanshew's testimony but not for McAlvain's.
After the prosecution presented its case-in-chief against Carraballo-Mejias, his counsel called him as a witness. Defendant's counsel asked that defendant's jury be excused from hearing Carraballo-Mejias's testimony because "there's been a lot of evidence pertaining to Mr. [Carraballo-]Mejias that was presented outside the presence of my jury. If he—I don't know what he's going to testify to; but . . . all of that evidence, or much of that evidence may suddenly become relevant. And my jury hasn't heard it. And if I need to impeach him . . . it opens up a whole can of worms. I mean, obviously I couldn't foresee that he was going to testify. But . . . all of those letters, all of the phone calls, all of that suddenly becomes relevant, potentially . . . ." Counsel further contended defendant and he were not present for some of the evidence presented against Carraballo-Mejias and he had no way to reconstruct Barboza's testimony.
The People opposed defendant counsel's request because, while the prosecutor thought Carraballo-Mejias's counsel should have disclosed earlier that Carraballo-Mejias would testify, many of defendant's counsel's concerns were dealt with by the fact that he could confront and cross-examine Carraballo-Mejias. Also defendant and his counsel had excused themselves "voluntarily" from certain portions of the trial.
The court commented that Carraballo-Mejias's counsel should "at least [have] shared" with defendant's counsel that he was going to testify, but overruled defendant's counsel's objection because he could cross-examine and confront Carraballo-Mejias. Defendant's counsel then asked without opposition for a continuance to read transcripts of the testimony he had not heard. The People did not object and the court allowed him until the next day to do so without objection from him.
Carraballo-Mejias testified the next day, and defendant's counsel chose not to ask any questions. Carraballo-Mejias said he worked for a drug dealer, Jesus Sanchez Bastidas. He also did drug deals with Bastidas and Ramon, but they did not use any guns. He met Ramon in August 2011, and had phone calls with him the next month about purchasing Ramon's Chrysler 300 vehicle. He met Fernando in September 2011 and defendant on the day of the incident.
At another point in the trial, the parties stipulated that Fernando was the registered owner of a 2005 Chrysler 300, which was impounded and released to a third party, the true owner, in April 2011.
Carraballo-Mejias also said that Bastidas told him some investors wanted to buy marijuana, and that Ramon later asked him to look at some marijuana for these investors. This led to the meeting with Alfaro and de Jesus on October 5, 2011. Carraballo-Mejias examined a sample of the marijuana in de Jesus's car. He spoke English to Ramon because Ramon was learning the language. Ramon asked how much marijuana de Jesus could sell and Carraballo-Mejias got out of the car while the others continued to talk.
Carraballo-Mejias said the next day, October 6, 2011, Ramon called him about looking at the marijuana and picked him up around noon. Fernando and defendant were in the back seat. Carraballo-Mejias, sitting in the front passenger seat, did not see or talk about any guns.
Ramon became agitated when he could not reach the seller by phone. He drove to Carniceria Contreras, where he used to work, to say hello to the people there. He had Fernando and defendant go inside to say hello to the owners, and Carraballo-Mejias told Ramon to take him home because nothing was happening. The two left. Ramon stopped at a store and Carraballo-Mejias went to buy beer. Ramon then said he had talked to de Jesus and could not take Carraballo-Mejias home, and they returned to Carniceria Contreras.
As Ramon drove into the Carniceria Contreras parking lot, he became upset that he could not reach the seller by phone and said he was going to "beat the shit out of" him. Carraballo-Mejias told him that was not what "Jesus wanted to happen." Ramon called over Fernando and defendant and told them to get something that sounded in Spanish like "toys" or "guns." Fernando got something out of the back seat, but Carraballo-Mejias did not see any guns. Fernando and defendant went behind Carniceria Contreras. Carraballo-Mejias asked Ramon, " 'What was that for?' " Ramon replied, " 'The guy hasn't showed up, and I don't know where his head is'; something like that." Carraballo-Mejias stayed in the car with the money for the transaction next to him. He did not intend to participate in a robbery or leave the car.
De Jesus arrived about three or four minutes after Fernando and defendant went to the back of Carniceria Contreras. Ramon told Carraballo-Mejias to stay in the car; then Ramon got out and greeted de Jesus. De Jesus took two boxes out of the rear seat of his car and placed them on the ground. He opened his car trunk while Ramon loaded a box into the back of the Cadillac. Then Fernando walked over to de Jesus from behind the shop "kind of fast," argued with de Jesus and pointed a gun at him, which de Jesus tried to slap away. Carraballo-Mejias saw pushing and grabbing. Fernando and Ramon each pushed de Jesus into his car trunk. Carraballo-Mejias heard a gunshot, and Ramon say, " 'Let's go, let's go. Vamonos.' " Fernando said, " 'Oh shit, I shot him.' " Carraballo-Mejias started to get out of the Cadillac, but Ramon told him to get back in and the four sped away. As they drove away, Fernando said something about the guns and something was thrown out the window. Carraballo-Mejias broke Ramon's cell phone and threw it out the window at Ramon's instruction. Ramon drove to Hayward, where he left Carraballo-Mejias and Fernando while they were inside a store, and they went back to Santa Rosa.
Carraballo-Mejias also testified about his phone calls with his girlfriend, Jamie Barboza, and letters he wrote, all while he was in jail. Three recorded phone calls previously admitted into evidence before Carraballo-Mejias's jury were also admitted into evidence for defendant's jury to consider. Carraballo-Mejias said in one call, "A group of us went around doing what I told you in the letter," but testified they were only buying marijuana and drugs. In a call in which he talked about the incident, he said there were not supposed to be any guns, and he was to sit in the car while the other three men beat the seller up and took his drugs.
One of Carraballo-Mejias's letters previously admitted into evidence for his jury to consider was also admitted into evidence for defendant's jury to consider. In it, Carraballo-Mejias referred to Ramon, Fernando and defendant taking 30 pounds of marijuana and two guns to Bastidas's house on September 29 or 30, 2011, in Carraballo-Mejias's presence. Asked about this part of the letter and his testimony that he did not see defendant until the day of the incident, Carraballo-Mejias said there is a difference between knowing and seeing someone; he had previously seen defendant, Ramon and Fernando with at least two guns and the marijuana as indicated in his letter but had not met defendant until the day of the incident. He had previously worked with Bastidas and Ramon, but did not know if Ramon also worked with Fernando.
Detective Brandon Cutting testified about what Carraballo-Mejias told him the day Carraballo-Mejias was arrested. Carraballo-Mejias told Cutting he panhandled, did odd jobs and had worked until a few months before at a rental company. He told two different stories about what he did on October 6, 2011, one being that he had panhandled at a local restaurant and the other being that he had a telephone interview with the county welfare office, rode a bicycle and spent time with friends. He denied knowing Ramon, Fernando and defendant, and said nothing about the incident or working for Bastidas. At some point, he said he could tell Cutting what had happened, but was scared for his family. Cutting thought he was trying to make a deal.
In closing argument, the prosecutor relied in part on Carraballo-Mejias's testimony to argue defendant was guilty of felony murder in the commission of a robbery. She contended defendant had previously carried a gun and been involved in drug transactions based on Carraballo-Mejias's testimony that he saw defendant "on September 29th or 30th with 30 pounds of weed and two guns" with Ramon and Fernando at Bastidas's house. She also referred to testimony by Carraballo-Mejias that, she contended, indicated that "Ramon told [defendant] and Fernando to get the guns" shortly before de Jesus arrived.
B. Analysis
Defendant does not challenge the court's decision to conduct a joint trial of Carraballo-Mejias and defendant before separate juries. He complains only of the court's decision to allow his jury to hear Carraballo-Mejias's testimony. He thoroughly explains the constitutional and statutory safeguards in place to protect the constitutional rights of defendants from prosecutorial overreach, such as a defendant's right to notice, discovery and prosecutorial honesty and candor. (See, e.g., § 1054.1 [discovery]; Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165 [disclosure of witness statements]; Brady v. Maryland (1963) 373 U.S. 83 [disclosure of exculpatory evidence]; United States v. Bagley (1985) 473 U.S. 667, 674 [disclosure of evidence that impeaches state witnesses]; Napue v. Illinois(1959) 360 U.S. 264 [prohibition against presenting false testimony]; People v. Dehle (2008) 166 Cal.App.4th 1380, 1386-1390 [private prosecutions].) He argues he was denied these protections when Carraballo-Mejias's counsel in effect privately prosecuted him by ambushing him with Carraballo-Mejias's prejudicial testimony contradicting defendant's defense that he had not used a weapon during the incident or been involved previously in drug crimes. However, he does not contend that Carraballo-Mejias's testimony was irrelevant or otherwise inadmissible.
Defendant's assertion that Carraballo-Mejias's decision to testify before defendant's jury was tantamount to a private prosecution against defendant is meritless. As explained in a case cited by defendant, " 'In California, all criminal prosecutions are conducted in the name of the People of the State of California and by their authority. [Citation.] California law does not authorize private prosecutions. Instead, "[t]he prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor . . . . [¶] [who] ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. [Citation.] No private citizen, however personally aggrieved, may institute criminal proceedings independently [citation], and the prosecutor's own discretion is not subject to judicial control at the behest of persons other than the accused." ' " (People v. Dehle, supra, 166 Cal.App.4th at pp. 1386-1387.) Here, in the course of a joint trial before separate juries, Carraballo-Mejias acted to defend himself with his own testimony, and the court at the prosecution's request allowed his testimony to be heard by defendant's jury regarding events and charges common to them both. This included testimony relevant to defendant's case, some of which was consistent and some of which was inconsistent with defendant's defense. None of the law discussed by defendant in his opening brief addresses these circumstances. Quite obviously, his actions did not amount to a private prosecution of defendant.
We conclude, as the People contend, that the circumstances here are governed by the law regarding joint trials. Section 1098 states in relevant part: "When two or more defendants are jointly charged . . . they must be tried jointly, unless the court orders separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant . . . ." Section 1098 "expresses a legislative preference for joint trials. . . . Joint trials are favored because they 'promote [economy and] efficiency' and ' "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." ' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.)
"When defendants are charged with having committed 'common crimes involving common events and victims' . . . the court is presented with a ' "classic case" ' for a joint trial." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40.) "Given the 'legislative preference for joinder, separate trials are usually ordered only " 'in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.' " ' " (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998.) "[S]everance may be called for when 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' " (Coffman and Marlow, at p. 40.)
Neither party cites a California case that addresses a trial court's decision to allow two defendants' separate juries in a joint trial to hear relevant and admissible testimony of one codefendant that is arguably antagonistic to the defense presented by the other. Nonetheless, in our view, a request to exclude one defendant's jury from having certain evidence presented at a joint trial is tantamount to a request to partially sever the trials, as suggested by our Supreme Court when it stated, "The use of dual juries is a permissible means to avoid the necessity for complete severance . . . and offers an alternative to severance when evidence to be offered is not admissible against all defendants." (People v. Cummings (1993) 4 Cal.4th 1233, 1287 (Cummings), italics added.) Accordingly, we apply here the same abuse of discretion standard of review that we apply when we review a trial court's denial of a severance motion, based on the facts as they appeared when the court ruled on the motion. Assuming the trial court abused its discretion, "reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result" (People v. Lewis (2008) 43 Cal.4th 415, 452) if, in this case, defendant's jury had not considered Carraballo-Mejias's testimony. If we conclude the trial court's ruling was proper when it was made, we reverse only if the ruling " 'resulted in 'gross unfairness' amounting to a denial of due process." ' " (See ibid.)
In conducting our review, we bear in mind that the existence of conflicting defenses among codefendants does not by itself require severance. "[S]eparate trials may be ordered in the face of antagonistic defenses," which "conflict exists only where the acceptance of one party's defense precludes the other party's acquittal." (People v. Carasi (2008) 44 Cal.4th 1263, 1296 (Carasi).) "Additionally, severance may be called for when 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' " (People v. Lewis, supra, 43 Cal.4th at p. 452.) However, " 'no denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution.' " (People v. Boyde (1988) 46 Cal.3d 212, 233 (Boyde).) Further, "[a]lthough several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis." (Id. at p. 232; see People v. Wardlow (1981) 118 Cal.App.3d 375, 383-388 [affirming trial court's decision to empanel separate juries for defendants accused of robbery and murder with strict limitations on the evidence and argument each jury heard and considered].)
Thus, " ' "[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other." [Citation.]' [Citation.] ' "Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." ' [Citations.] If 'there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.' " (People v. Souza (2012) 54 Cal.4th 90, 111.) Stated another way, " ' "mutual antagonism" only exists where the acceptance of one party's defense will preclude the acquittal of the other.' " (People v. Hardy (1992) 2 Cal.4th 86, 168 (Hardy).) Otherwise, " '[i]f the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials "would appear to be mandatory in almost every case." ' " (Souza, at p. 110.)
Our Supreme Court has repeatedly concluded that in a joint trial one codefendant may, depending on the circumstances, present evidence or argument that is directly antagonistic to another codefendant's defense. Perhaps most significant to the present case, in Cummings, the Supreme Court rejected an appeal from the trial court's denial of a severance motion and holding of a joint murder trial of two defendants before separate juries. Each defendant attempted to shift blame to the other, and the jury of the first defendant heard three extrajudicial statements by the second defendant that arguably implicated the first in the murder. (Cummings, supra, 4 Cal.4th at p. 1288.) On appeal, Cummings argued he was denied a fair trial and was subjected to a " 'gratuitous' special prosecutor," meaning his codefendant's attorney. (Id. at pp. 1285-1286.) The Supreme Court held there was no abuse of discretion or gross unfairness in the trial court's rulings: "That defendants have inconsistent defenses and may attempt to shift responsibility to each other does not compel severance of their trials . . . . That each was involved in the incident was undisputed . . . and the prosecution had offered evidence sufficient to support verdicts convicting both defendants. As the People observe, this was not a case in which only one defendant could be guilty. . . . Most of the additional evidence each defendant offered to support his attempt to shift blame to the other would have been admissible had the prosecution sought to offer it." (Id. at pp. 1287-1288.) The court also found no gross unfairness in part because the jury "trying each defendant was fully aware that the other was attempting to avoid his own responsibility by shifting blame," and each jury heard closing arguments pertinent to only its defendant. (Id. at p. 1288.)
In Carasi, the court found the trial court acted within its discretion in denying a severance motion, relying on the existence of independent evidence implicating Carasi to reject his argument that severance was necessary because his codefendant's counsel argued he had committed the murders. (Carasi, supra, 44 Cal.4th at pp. 1296-1298.)
In Boyde, Boyde argued the trial court's refusal to order separate trials for him and his codefendant was a prejudicial abuse of discretion in light of a codefendant's incriminating testimony. (Boyde, supra, 46 Cal.3d at pp. 231-232, 233.) The high court disagreed. It noted that each defendant participated in the incident, the codefendant's testimony was corroborated by other evidence and his counsel made no arguments to Boyde's jury (the codefendant waived a jury trial), no inadmissible evidence against Boyde was introduced, and the codefendant was available for cross-examination. (Id. at pp. 227, 233-234.) Further, Boyde's own damaging lack of credibility as a witness undermined his argument that his codefendant's testimony against him "permitted the prosecution to benefit . . . while being relieved of the responsibility of informing the jury that the testimony contained perjury." (Id. at p. 234.)
Similarly, in Hardy, the high court rejected the argument that the trial court's rejection of defendants' severance motions and holding of a joint trial was an abuse of discretion and fundamentally unfair under state law and the federal Constitution. (Hardy, supra, 2 Cal.4th at p. 167.) The court held that the jury in a joint trial was capable of evaluating the credibility of conflicting accounts by the defendants, even though at the time of the severance motions, one planned to contend he withdrew from the conspiracy, another that the other two defendants must have committed the murders, and a third that another defendant and an unknown third person must have done so. (Id. at pp. 167-168.) The court found it significant that no defendant confessed and implicated another defendant, nor presented a defense that necessarily implicated a second defendant and concluded: "Each defendant presented a theory of the case that absolved himself of guilt and focused blame on the others. The jury was thus presented with a straightforward choice regarding the credibility of the various defendants." (Id. at p. 169.)
Defendant cites Watson v. State (Fla. 1994) 633 So.2d 525 in support of his argument. That Florida appellate court stated in dictum that the trial court should not have allowed the codefendant to present the testimony of a child eyewitness to a shooting before appellant's jury; it did not analyze the issue and it affirmed the judgment on other grounds. (Id. at pp. 525-526.) The court's dictum has no bearing here because the case did not involve California law and its circumstances were far more egregious than those present here, i.e., the child's testimony identified appellant as the actual shooter and the evidence against appellant was otherwise "tenuous." (Ibid.)
The present case, as in People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40, presents a "classic case" for joinder because Carraballo-Mejias and defendant were charged with common crimes (murder, conspiracy to commit robbery and robbery) regarding a common victim (de Jesus) in a common event. Defendant's contention that his jury nonetheless should not have heard Carraballo-Mejias's testimony is unpersuasive in light of the Supreme Court cases we have discussed. On balance defendant's defense and Carraballo-Mejias's testimony were neither particularly antagonistic nor irreconcilable. Indeed, they were more consistent than the conflicts in the cases we have discussed, such as in Hardy. Carraballo-Mejias and defendant admitted being at the scene of the robbery/killing, but both denied participating in or being aware of any plan to rob or shoot de Jesus, and Carraballo-Mejias's testimony did not implicate defendant in the robbery or the shooting of de Jesus beyond what defendant had acknowledged himself. Indeed, the testimony was consistent with defendant's own statement that he understood he was going to a drug transaction and supported defendant's theory that he lacked knowledge of any robbery plan in that Carraballo-Mejias testified that he had cash for the transaction by his side when Fernando unexpectedly shot de Jesus.
Some of Carraballo-Mejias's testimony was arguably inconsistent with defendant's contentions. Carraballo-Mejias confirmed what he had stated in a letter from prison—that he had seen defendant with Ramon and Fernando at Bastidas's house on September 29 or 30 with 30 pounds of marijuana and at least two guns—and it could be argued this recollection implied defendant had participated in or knew of prior drug robberies by Ramon and Fernando. But this is a big leap from this sparse evidence; Carraballo-Mejias did not testify that defendant was in possession of the guns or the marijuana, that the marijuana had been stolen, or that he, Carraballo-Mejias, knew of any prior robberies in his dealings with Ramon and Bastidas.
Defendant also contends great damage was done to his contention that he was unarmed when the shooting occurred by Carraballo-Mejias's testimony that Ramon told defendant and Fernando in Spanish to get something out of the Cadillac, possibly toys or guns, before they went behind the Carniceria Contreras building just prior to de Jesus's arrival. However, Carraballo-Mejias testified that only Fernando reached into the Cadillac for something, not defendant, and he did not testify that he saw defendant with a gun at the scene. And, similar to defendant's statement to Basurto, Carraballo-Mejias testified that he understood they were there for a drug transaction and that Ramon told defendant and Fernando to go behind the building together because of Ramon's concern that de Jesus might cause problems.
Most importantly, regardless of the inconsistencies or conflicts between any of Carraballo-Mejias's testimony or out-of-court statements and defendant's defense, there was, as in Cummings, Boyde and Carasi, other evidence independent of Carraballo-Mejias's testimony to implicate defendant as a knowing participant in the armed robbery of de Jesus. Given the eyewitness testimony and other evidence (such as the evidence of phone calls between the robbers and the phones and weapons found at or near the scene), and Alfaro's testimony indicating that Ramon and Carraballo-Mejias held a deceptive meeting with de Jesus the day before the incident, defendant's initial lies and omissions to Basurto about his conduct at the scene of the crime (which undermined his credibility), his admitted conduct moving boxes during the incident and leaving with the other three men afterwards, his implausible denial that items were thrown out the windows of the car as the group drove away, and his acknowledgment that he and Fernando hid behind Carniceria Contreras in wait for de Jesus were highly incriminating.
If Ramon had expected problems from de Jesus, it is far more likely that he would have allowed de Jesus to see that he was accompanied by Fernando and defendant rather than have them hide.
Furthermore, defendant offered no explanation for why, upon de Jesus's arrival and opening of his car trunk, he and Fernando emerged from behind Carniceria Contreras, why Fernando went up to de Jesus gun in hand. why defendant took boxes from de Jesus's trunk upon Ramon's instruction around this same time, why he left with the other men and why they discarded guns and phones from their car as they fled. We can think of no scenario that explains these actions other than that all four men were a part of a planned strong-arm robbery that went awry, and the jury likely reached the same conclusion.
In support of his argument about the lack of other evidence, defendant contends in particular that Velasquez was not a credible witness, given her lies to police, probation status and immunity, methamphetamine abuse and relationship with Fernando. We do not necessarily agree, but regardless the jury had ample other evidence independent of Carraballo-Mejias's testimony that pointed to defendant's culpability.
Here we are referring to culpability for felony murder and robbery, and not the truth of the "robbery special-circumstance" allegation. As we will discuss, we are reversing the jury's finding that this allegation was true for other reasons.
Further, as in Cummings, this was not a case in which only one defendant could be found guilty. Each defendant could be found guilty or not guilty independent of the other. And as in cases we have discussed, defendant's jury could be expected to understand that each defendant would attempt to absolve himself and shift blame to others. Also as in Cummings, the impaneling of separate juries minimized the impact of any such effort by Carraballo-Mejias because the record does not indicate defendant's jury heard the closing arguments regarding Carraballo-Mejias.
Defendant, besides overstating the significance of the inconsistencies between Carraballo-Mejias's testimony and defendant's counsel's contentions, argues error for several reasons. First, he contends that we should not apply case law involving denial of severance because unlike in those cases, which involved a single jury, his jury did not hear all of the prosecution's impeachment evidence against Carraballo-Mejias and his defense counsel did not either, and "so was unable to evaluate the impact of that evidence on a jury aside from reading a cold record later." These arguments are unpersuasive because defendant does not explain why, after hearing Carraballo-Mejias's testimony, he could not have presented any and all of the prosecution's previously presented impeachment evidence to his jury as well, whether via transcripts, subpoenaed testimony, cross-examination of Carraballo-Mejias, or documentary evidence. Defendant also does not identify impeachment evidence that could have influenced his jury in his favor or demonstrate that his own counsel could not take full advantage of such evidence based upon review of the record.
Defendant also complains that his due process rights were violated because as a codefendant he was not entitled to and did not receive prior notice that Carraballo-Mejias would testify or any discovery related to that testimony, nor was he protected by the prosecutorial duty of honesty and candor in Carraballo-Mejias's presentation of his own testimony. We see no reason to conclude the absence of such notice, discovery, or prosecutorial duty denied defendant a fair trial in light of the ample evidence of his culpability.
For these reasons, we conclude defendant's claims of error and ineffective assistance of counsel lack merit. In light of this conclusion, we need not address the remaining arguments by the parties on these matters or defendant's contention that the court's failure to instruct properly regarding probable and natural consequences and to excuse his jury from hearing Carraballo-Mejias's testimony constitute prejudicial cumulative error.
III.
There Was Prejudicial Instructional Error Regarding the "Robbery Special-
Circumstance" Allegation Against Defendant.
Defendant was sentenced to life without the possibility of parole after the jury found true the "robbery special-circumstance" allegation the People made under section 190.2, subdivision (a)(17)(A). Defendant contends we must reverse the jury's finding because the court's "special circumstance" instructions conflicted regarding the elements the jury was required to find and because there was not sufficient evidence to support the finding.
Upon our review of the instructions as a whole, we conclude that the trial court erred in the "special circumstances" instructions it gave to the jury given the particular circumstances of this case. The court's instructions were ambiguous as to whether the prosecution was required to prove the additional intent and major participant elements required for the felony-murder special circumstance to be applied to a robbery participant who was not the killer, such as defendant. As our Supreme Court has recognized, these elements are integral to a determination that an aider and abettor of a felony murder has the heightened degree of culpability justifying imposition of a sentence of death or life without parole. (See People v. Clark (2016) 63 Cal.4th 522, 615 (Clark) ["To determine whether a defendant is culpable on an aider and abettor theory, we have differentiated the elements required for first degree felony murder from those required for the felony-murder special circumstance"]; People v. Banks (2015) 61 Cal.4th 788 (Banks) [discussing factors that aid in determining whether defendant's culpability is sufficient to make him or her death eligible].) The instructions were sufficiently confusing that a juror could have reasonably ignored these additional requirements for a non-killer in finding the special circumstance allegation to be true. Furthermore, applying as we must the federal constitutional standard for evaluating this error, we conclude it was prejudicial. Therefore, we reverse this part of the judgment.
A. The Proceedings Below
The trial court gave the jury written instructions "to use in the jury room" that the court read to the jury in open court. These instructed the jury on how to consider the robbery special-circumstance allegation with the guidance of several CALCRIM instructions. Defendant focuses on those instructions the court modeled after CALCRIM Nos. 703 and 730.
The written instructions contain six consecutive instructions which titles begin with the phrase "Special Circumstances," followed by further descriptions of their subject matter. The second of these instructions is modeled after CALCRIM No. 703, and is entitled, "703. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder (Penal Code § 190.2(d))." It states: "If you decide that a defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of Murder during the commission of a robbery, you must also decide whether the defendant acted with an intent to kill or with reckless indifference to human life. [¶] In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1.: The defendant's participation in the crime began before or during the killing; [¶] 2.: The defendant was a major participant in the crime; AND [¶] 3.: When the defendant participated in the crime, he acted with reckless indifference to human life. [¶] A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he knows involves a grave risk of death. [¶] The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstances of Murder during the commission of a Robbery to be true. [¶] If a defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstances of Murder during the commission of a Robbery to be true. If the People have not met this burden, you must find these special circumstances have not been proved true for that defendant."
The sixth of these special circumstance instructions is modeled after CALCRIM No. 730 and is entitled, "730. Special Circumstances: Murder in Commission of Felony (Penal Code § 190.2(a)(17).)" It states: "The defendant is charged with the special circumstance of murder committed while engaged in the commission of Robbery in violation of Penal Code Section 190.2(a)(l7). [¶] To prove this special circumstance is true, the People must prove that: [¶] 1.: The defendant aided and abetted or was a member of a conspiracy to commit Robbery; [¶] 2.: The defendant intended to aid and abet the perpetrator in committing, or intended that one or more members of the conspiracy commit Robbery; [¶] 3.: If the defendant did not personally commit Robbery, then a perpetrator, whom the defendant was aiding and abetting before or during the killing or with whom the defendant conspired, personally committed Robbery; [¶] 4.: FERNANDO LOPEZ-CASTILLO did an act that caused the death of another person; [¶] 5.: The act causing the death and the Robbery were part of one continuous transaction; AND [¶] 6.: There was a logical connection between the act causing the death and the Robbery. The connection between the fatal act and the Robbery must involve more than just their occurrence at the same time and place. [¶] To decide whether the perpetrator committed Robbery, please refer to the separate instructions that I will give you on that crime. To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I will give you on aiding and abetting. To decide whether the defendant was a member of a conspiracy to commit a crime, please refer to the separate instructions that I will give you on conspiracy. You must apply these instructions when you decide whether the People have proved first degree murder under a theory of felony murder. [¶] The defendant must have aided and abetted, or been a member of a conspiracy to commit the felony of Robbery before or at the time of the act causing the death."
The fourth of these six special circumstances instructions is also relevant to our inquiry. Entitled, "705. Special Circumstances: Circumstantial Evidence—Intent or Mental State," it states in relevant part: "In order to prove the special circumstances of Murder during the commission of a Robbery, the People must prove not only that a defendant did the acts charged, but also that he acted with a particular intent or mental state. The instruction for each special circumstance explains the intent or mental state required."
Defendant's counsel in his opening statement indicated defendant did not know about any robbery plan or agree to participate in it. He repeated this in his closing argument and urged the jury to reject the charges and allegations against defendant.
The prosecutor contended in closing argument that defendant was guilty as charged. When it came to the special circumstance allegation, she focused on the requirements in the court's CALCRIM No. 703 instruction: "Special circumstances. If there's no intent to kill—I submit to you there's no intent to kill—we have to show that he participated in the crime before the killing. I think we've done that. We have to show that he was a major participant in the crime. I submit to you, he was. It's not like he provided the car as a co-conspirator, and didn't go, and didn't have anything to do with what happened at [Carniceria Contreras]. He was there. He hid behind the building. He was armed. . . . [¶] He acted with reckless indifference to human life. What does that mean? The jury instruction defines it for you as knowingly engaging in an activity that involves a grave risk of death. The same facts that we talked about as far as a natural and probable consequence go to a grave risk of death. Loaded guns. The unpredictability of human behavior. Right? His knowledge that his co-participant was armed."
The jury found the special circumstance allegation to be true. Nothing on its verdict form indicates whether it decided this using the elements stated in the "703" instruction, the "730" instruction, or both. Further, the jury found true a statement on the verdict form that refers only to the statute cited in the heading of the "730" instruction, section 190.2, subdivision (a)(17), and makes no reference to the statute cited in heading of the "703" instruction, section 190.2, subdivision (d). This statement as marked by the jury reads, "We, the Jury, further find that the special circumstance that the murder of JOSE MANUEL DEJESUS was committed while the said defendant was engaged in the commission of the crime of robbery, within the meaning of Penal Code section 190.2(a)(17) to be: [¶] TRUE."
Defendant moved for a new trial. Among other things, his attorney submitted a declaration stating he had conducted interviews with some of the jurors and that some interviewed said they had not considered, or fully considered, whether defendant was a major participant in the robbery who acted with reckless indifference to human life. One juror told him that the jury had considered the matter for most of one afternoon and that the verdict was unanimous.
B. Analysis
1. The Trial Court Erred by Giving Confusing Instructions.
Trial courts have a sua sponte duty to instruct on all elements of charged offenses. (Cummings, supra, 4 Cal.4th at p. 1311.) The People have the burden of proving the truth of a special circumstance allegation beyond a reasonable doubt, and the jury must agree unanimously on whether the People have done so. (See People v. Mil (2012) 53 Cal.4th 400, 409.) Defendant contends the jury received conflicting instructions without clarification as to how to consider them together. We do not agree that the instructions are necessarily conflicting, but conclude that they—particularly when considered with the jury's verdict form—were so confusing as given that there was a reasonable likelihood that a juror could misinterpret them. Therefore, the court erred.
The jury found defendant guilty of first degree murder pursuant to the felony-murder rule as a result of his participation in the robbery of de Jesus. There was no dispute that during this robbery, Fernando was armed and that he, and not defendant, shot de Jesus in the head and killed him. Under these circumstances, the level of defendant's participation in the robbery and his regard for the dangers it posed were of particular importance. This is because of the intent required for robbery participants who are not the actual killers in order for them to be found subject to the "life without possibility of parole" special-circumstances allegation.
Section 190.2 sets forth a series of special circumstances that, when found to be true for a defendant convicted of first degree murder, impose a minimum sentence of life without parole and a potential sentence of death. Section 190.2, subdivision (a)(17)(A) defines as a felony-murder special circumstance when "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit . . . [¶] [r]obbery in violation of Section 211 or 212.5."
As explained in further detail by our colleagues in Division One of this court, section 190.2, subdivisions (c) and (d) were added to section 190.2 by Proposition 115. (People v. Odom (2016) 244 Cal.App.4th 237, 251-252.) Section 190.2, subdivision (c) provides: "Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4."
Section 190.2, subdivision (d) provides: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4."
The model CALCRIM instructions do not contain one instruction outlining all of the elements needed to find a felony-murder special-circumstance allegation to be true for a defendant who was not the actual killer. Instead, CALCRIM No. 703 and No. 730 together contain the elements that apply to a defendant against whom a felony-murder special circumstance is alleged. CALCRIM No. 703 addresses the special intent requirements stated in section 190.2, subdivision (d) for a defendant who was not the actual killer. But CALCRIM No. 730 purports to state what the People must prove in order to establish that the felony-murder special circumstance applies. This is not necessarily a problem in all cases. After all, "[w]e look to the instructions as a whole and the entire record of the trial, including the arguments of counsel. [Citations.] We assume that the ' " 'jurors [were] intelligent persons and capable of understanding and correlating all jury instructions . . . given.' [Citation.]" [Citation.]' [Citation.] Instructions should be interpreted, if possible, to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Lopez (2011) 198 Cal.App.4th 698, 708.)
Applying these rules here, we conclude the trial court erred by giving the jurors instructions—and a verdict form—that were so confusing as to create the reasonable likelihood that a juror misinterpreted them. This was in significant part because the trial court did not adequately modify the model instructions to better fit the particular circumstances of this case. The court's "730" instruction told the jury that in order for it to find the "special circumstance is true, the People must prove" the six elements listed in the instruction. None of these six elements referred to the additional intent requirement for a non-killer called for by section 190.2, subdivision (d), even though one of the six elements was that "FERNANDO LOPEZ-CASTILLO did an act that caused the death of another person" in recognition of the agreed fact that Fernando, and not defendant, was the actual killer. In this same "730" instruction, the court further told the jurors that in order to determine whether "the perpetrator"—an apparent reference to Fernando—was involved in a crime (i.e., the robbery) or whether defendant aided and abetted in, or conspired to commit, the crime, the jury should refer to the court's separate instructions on each of these subjects. However, the court did not refer here to its separate instruction on the additional intent the jury was required to find given that defendant indisputably was not the actual killer. Given this confusion, a reasonable juror reading the court's "730" instruction could conclude he or she should find the "robbery special circumstance" to be true if these six elements and the separate instructions referred to in the instruction were met. The court essentially told the jurors in "730" that this was the case.
It is true that the court first provided to the jury another instruction, "703," in which it stated the intent required for the jury to find the "special circumstance" allegation to be found true with respect to defendant. In some cases, applying the rule that we can expect juries to correlate the instructions as a whole, this might be sufficient. But here, particularly in the absence of any cross-references between "703" and "730," there is the additional confusion created by one of the three instructions that lay between "703" and "730," the court's "705" instruction. It expressly states, "The instruction for each special circumstance explains the intent or mental state required." Here, this simply was not the case. The special circumstance instruction, "730," omitted without explanation or reference to the "703" instruction the intent required of defendant for the special circumstance allegation to be found true. To further confuse the issue, the actual statement the jury was to consider on its verdict form referred to the statutory citation in "730" but not the additional citation in "703," thereby implying the jury was to base its answer on the "730" instruction only.
That is, the jury was instructed that it must find that defendant's participation in the crime of robbery began before or during the killing (not at issue here), that he was a major participant in the crime and that in this participation he acted with reckless indifference to human life.
The People sought to prove the required elements, as indicated by the prosecutor's closing argument, and the court properly instructed the jury pursuant to CALCRIM No. 703. Further, the People argue there was no chance the jury would be confused by the instructions because as given they were "in accordance with the bench notes for both instructions, [and] required that in order to find the robbery special-circumstances allegation to be true the jury had to make both sets of findings." This is unpersuasive because the jury was not provided with the bench notes, and the court did not clarify that the jury was to find the elements stated in both set of instructions before determining whether the allegation was true. A simple clarification along these lines could possibly have eliminated the conflict, but in its absence, the confusion we have outlined remained.
Regardless of the prosecutor's arguments and the correct statement of intent in the "703" instruction, under the confusing combination of instructions as given in this case, we conclude there is a reasonable likelihood that the jury misunderstood that it could decide the "robbery special-circumstance" allegation was true based on the court's "730" instruction alone, without determining the elements of "intent" required by section 190.2, subdivision (d) and stated in the "703" instruction. Therefore, under the legal standards that we have already discussed, the court's instructions, read as a whole, were in error and defendant's constitutional due process rights were violated. (See People v. Kelly, supra, 1 Cal.4th at p. 525; People v. Wilson, supra, 44 Cal.4th at p. 803; Boyde v. California, supra, 494 U.S. at p. 380 [a "reasonable likelihood" is something less than more probable than not; it includes the reasonable "possibility" that a juror misinterpreted an instruction].)
In light of our conclusion, we do not consider defendant's other contentions for why the jury's special circumstance finding was flawed.
2. The Court's Instructional Error Was Prejudicial.
The court's confusing instructions involved defendant's mental state, i.e., whether he acted with "reckless indifference to life." This is a mental state " 'in which the defendant "knowingly engag[es] in criminal activities known to carry a grave risk of death." . . .' [Citation.] This mental state thus requires the defendant be 'subjectively aware that his or her participation in the felony involved a grave risk of death.' " (People v. Mil, supra, 53 Cal.4th at p. 417.) " 'If conflicting instructions on the mental state element of an alleged offense can act to remove that element from the jury's consideration, [then] the instructions constitute a denial of federal due process and invoke the Chapman "beyond a reasonable doubt" standard for assessing prejudice.' " (People v. Larsen (2012) 205 Cal.App.4th 810, 829-830.) Thus, we apply the federal "beyond a reasonable doubt" harmless error test pursuant to Chapman v. California (1967) 386 U.S. 18, 24.
"In contrast, 'misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated' in Watson." (People v. Larsen, supra, 205 Cal.App.4th at p. 830.)
Our Supreme Court has recently issued two decisions clarifying the evidence required to meet the requirements of the "robbery special-circumstance" allegation, Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. Each merits some discussion.
In Banks, Banks, Gardiner, and Daniels robbed a medical marijuana dispensary while appellant Matthews waited in a car outside. (Banks, supra, 61 Cal.4th at p. 794.) Banks and Gardiner were armed. (Id. at p. 795.) While trying to exit the dispensary, Banks shot and killed a security guard who was pushing the dispensary's front door closed. (Ibid.) Matthews was convicted of robbery special-circumstance murder. On appeal, he argued there was insufficient evidence to prove he was a major participant who acted with a reckless indifference to human life. Our Supreme Court agreed based on its review of Enmund v. Florida (1982) 458 U.S. 782 (Enmund), Tison v. Arizona (1987) 481 U.S. 137 (Tison) and the facts in the case before it.
Regarding the major participant prong of the "robbery special-circumstance" allegation, the court noted that "Enmund and Tison together demonstrate that participation in an armed robbery, without more, does not involve 'engaging in criminal activities known to carry a grave risk of death.' " (Banks, supra, 61 Cal.4th at p. 805.) The court emphasized there was no evidence that Matthews was involved in the planning of the robbery, helped procure the weapons used, knew any of the three other robbers had killed before, was at the scene of the armed robbery, had any role in instigating the shooting or could have prevented it, and also no evidence that he, Gardiner, or Daniels had committed any violent crime before. (Id. at pp. 796, 805.) It concluded Matthews was "no more than a getaway driver," which was insufficient to find he was a major participant in the robbery. (Id. at pp. 805-807.)
As for the reckless indifference prong, the court noted that Matthews knew he was participating in an armed robbery. (Banks, supra, 61 Cal.4th at p. 807.) Nonetheless, there was no evidence he "knew that his own actions would involve a grave risk of death," intended to kill or "knowingly conspired with accomplices known to have killed before." (Ibid.) Therefore, the court concluded, there was insufficient evidence to sustain the reckless indifference prong as well. (Ibid.)
In Clark, the court again addressed the reckless indifference prong and found the evidence insufficient to meet it. (Clark, supra, 63 Cal.4th at p. 623.) Clark was also convicted of a robbery special-circumstance murder, although another man shot the victim to death. The court again pointed out that "[t]he mere fact of a defendant's awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life." (Id. at p. 618.) However, the court made several pertinent observations about the kind of evidence a court should consider in determining whether this standard has been met.
First, it noted that "[a] defendant's use of a firearm . . . can be significant to the analysis of reckless indifference to human life" because such an action could " 'indicate a reasonable expectation that the death of the deceased or another would result.' " (Clark, supra, 63 Cal.4th at p. 618.) In Clark's case, there was only one gun that was loaded with one bullet at the scene of the shooting, and it was carried by a person other than Clark. (Id. at p. 619.)
The court "stressed the importance of presence to culpability" as well, noting that "[p]roximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force." (Clark, supra, 63 Cal.4th at p. 619.) The court also noted that a party present at the scene has an opportunity to restrain the use of violence and is arguably more at fault for a murder if he or she does not. (Ibid.) Clark, however, was across a parking lot waiting for the shooter at the time of the killing and without opportunity to prevent it, and there was no evidence he instructed the shooter to use lethal force. (Id. at pp. 619-620.)
The court also noted that "[a] defendant's knowledge of factors bearing on a cohort's likelihood of killing are significant to the analysis of reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 621.) However, there was no evidence Clark knew the shooter had a propensity for violence or that Clark had the opportunity to observe anything in the shooter's actions prior to the shooting that indicated the shooter was likely to engage in lethal violence. (Ibid.) Also, Clark had planned the robbery so as to minimize the violence. (Id. at pp. 621-622.)
The Clark court, "after considering those aspects of the present felony that provide insight into both the magnitude of the objective risk of lethal violence and a defendant's subjective awareness of that risk," concluded that "there is insufficient evidence to support the inference that defendant was recklessly indifferent to human life. Defendant's culpability for [the] murder resides in his role as planner and organizer, or as the one who set the crime in motion, rather than in his actions on the ground in the immediate events leading up to her murder. . . . Given defendant's apparent efforts to minimize violence and the relative paucity of other evidence to support a finding of reckless indifference to human life, we conclude that insufficient evidence supports the robbery-murder and burglary-murder special-circumstance findings, and we therefore vacate them." (Clark, supra, 63 Cal.4th at p. 623.)
Applying the Banks and Clark analyses to the present case, we conclude there is strong evidence that defendant was a major participant in the robbery, but not that he acted with reckless indifference to human life. We base our view principally on the evidence presented other than Carraballo-Mejias's and Velasquez's testimony because we cannot say with sufficient assurance that the jury found either of these witnesses to be credible. Therefore, we consider whether the court's error was harmless beyond a reasonable doubt based principally on the undisputed evidence of defendant's actions, his statement to Basurto, and the other physical evidence.
As for defendant's participation in the robbery, he acknowledged to Basurto that he and Fernando together went behind Carniceria Contreras at Ramon's instruction and stayed there until after de Jesus arrived. While there is no direct evidence that defendant brandished a weapon at the scene, this evidence amply establishes he acted at the very least to surprise and, therefore, intimidate de Jesus upon his arrival, and knowingly acted in coordination with an armed Fernando to effect the strong-arm robbery.
Further, the evidence indicates that Fernando walked up to de Jesus and threatened him with his gun out while defendant, by his own statement to Basurto, took boxes of marijuana from the trunk of de Jesus's car. In other words, defendant, acting in coordination with Fernando's threatening de Jesus with lethal force, directly participated in robbing de Jesus of his marijuana. Further, after de Jesus was shot, defendant fled the scene with the others, who began tossing guns and phones out of their car as they drove away in an apparent effort to conceal their participation in the crime.
In our view, this evidence together establishes that defendant acted in coordination with Fernando's threat of lethal force in the robbery, acted to intimidate de Jesus with this force, directly robbed de Jesus of boxes and worked with his cohorts to get away, thereby acting as a "major participant" in the armed robbery.
As for the "reckless indifference to human life" prong, defendant acted in concert with Fernando to intimidate de Jesus, was at the scene and near enough to Fernando that he both had to be aware of Fernando's threatening de Jesus with lethal force and arguably was in a position to restrain Fernando from doing so. As our Supreme Court's analysis in Clark indicates, such facts can make a defendant particularly culpable for a death that is committed during such an armed robbery. However, the evidence indicates events occurred very quickly and that the shooting was an accident, making it unclear what defendant could have reasonably done to prevent Fernando from threatening de Jesus so as to prevent the shooting. Also, there is no evidence (other than inferences that could be drawn from Carraballo-Mejias's and Velasquez's testimony, the credibility of which assigned by the jury we cannot determine) that defendant was armed at the scene, knew that Fernando was armed prior to whenever Fernando took out his weapon, or knew that Fernando had a propensity for acting with lethal violence. Under these circumstances, we cannot conclude beyond a reasonable doubt that a juror would have found defendant acted with reckless indifference to de Jesus's life regardless of the court's improper instruction. Therefore, we conclude the court's instructional error was prejudicial.
In light of our conclusion, we have no need to address defendant's additional argument that there was insufficient evidence to support the jury's finding that the "robbery special-circumstance" allegation was true.
DISPOSITION
The judgment is affirmed, except that we reverse the jury's conclusion that the "robbery special-circumstance" allegation was true, vacate the court's sentence of life without possibility of parole pursuant to section 190.2, and remand this matter to the trial court for further proceedings consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.