Opinion
F041600.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY JOE LUNA, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Mark A. Johnson, Deputys Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
A jury convicted appellant, Johnny Joe Luna, of first degree murder (Pen. Code, § 187, subd. (a)), attempted first degree murder (Pen. Code, § 664/187, subd. (a)), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). On appeal, Luna contends: 1) the court committed instructional error; and 2) his abstract of judgment contains a clerical error. We will find merit in this last contention and correct Lunas abstract of judgment. In all other respects, we will affirm.
FACTS
The Prosecution Case
The prosecutions evidence established that on October 8, 2001, at 10:30 p.m., 16-year-old Juan C., 16-year-old Eduardo H. (Eduardo), and his 14-year-old brother, Jose, were standing in front of Coronas house on Eleventh Street in Calwa. At approximately 10:50 p.m., a white Ford Escort passed by several times and, on one occasion, someone inside yelled something unintelligible at the group. The car eventually parked across the street and then drove away after a woman got out. Five to fifteen minutes later, a Hispanic man walked toward Juans group, yelled out, "Whats up dog?" and fired several shots. Eduardo was struck in the head and hip and eventually died of his wounds. Juan was struck in the buttocks.
At 10:50 p.m., Abraham Gonzalez saw a small white car park in the alley next to his house on Eleventh Street. A person got out of the car and walked toward Eleventh Street. A few minutes later, Gonzalez heard several shots and saw the white car drive to the corner and pick up someone before speeding off.
At approximately 1:00 a.m., Laura Taylor and Joshua Mata picked up Luna at a store outside of Calwa and eventually took him to a motel. Luna told them he had some words with some "scrappers" (Sure&ntil;o gang members).
Later that morning, Grace Gomez received a call at work from Luna. Luna told Gomez he shot two people in Calwa, one in the back of the head and the other in the back. However, he also said that his cousin (Jose Rios) was the one who actually shot them. Luna said they shot the victims because of gangs and "scraps."
In a conversation with Gomez later that day that was recorded, Luna told her that he and Rios had shot some "scraps" or "fools" because they were in the Calwa Bulldogs neighborhood.
Luna was arrested later that day at the motel where he had been dropped off. During a post-arrest interview, Luna denied being with Rios in a small white car the night of the shooting. He also denied knowing anything about a white Ford Escort or about the shooting.
Juan C. identified Luna in court as the shooter.
The Defense
Luna testified he was a member of the Calwa Varrio Locos Bulldog gang and that on October 8, 2002, he drove the Escort involved in the shooting. Additionally, on that date, Luna drove a friend named Miguel to Modesto to buy marijuana and returned to Fresno at 6:30 p.m. After dropping off Miguel, Luna was at his mothers house when he received a call from Rios. Luna picked up Rios and at 10:17 p.m. bought some beer at a liquor store near the site of the shooting. Luna then drove back to his mothers house to get some marijuana for a friend, Ronnie Rivera. Later that night, Luna parked the car in the alley by Eleventh Street while he, Rivera, and Rios smoked some marijuana in the front yard of a residence belonging to Rachel Gonzales. Eventually, Rios left Luna and Rivera smoking marijuana ostensibly to urinate and Luna heard four or five popping sounds. When Rios returned, he told Luna that they had to get out of there. The trio then got into the Ford Escort and went to Rioss mothers house. Rios told Luna that he walked up to a house and shot at some people to retaliate for them having killed his "home boy."
Luna denied telling Gomez that he shot anyone. Luna lied during his post-arrest interview because he did not want to implicate Rios.
DISCUSSION
"A person aids and abets the commission of a crime when he or she [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging, or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime." (CALJIC No. 3.01, emphasis added.)
During a conference regarding jury instructions, the court refused the defenses request to instruct the jury that in order to find Luna guilty as an aider and abettor, they had to find that the requisite mental states preceded the commission of the charged offenses. On appeal, Luna contends the court committed reversible error by its failure to charge the jury that the knowledge and intent elements of aiding and abetting must precede or coincide with the perpetrators commission of the charged offenses. We will reject this contention.
In People v. Williams (1997) 16 Cal.4th 635, the Supreme Court rejected a similar argument. In so doing the court stated:
"We evaluate claims of instructional error " `in the context of the overall charge" to the jury. [Citations.] Here, in addition to the instruction on aiding and abetting (advising the jury that a person aids and abets the commission of a crime if he or she `shares the intent of the perpetrator), the trial court instructed the jury that in each of the charged crimes of murder `there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed. (CALJIC No. 3.31 (rev. 1980).) The court also instructed that the intent necessary for murder was `malice aforethought (CALJIC No. 8.10 (rev. 1984)), that `aforethought meant that `the required mental state must precede rather than follow the act (CALJIC No. 8.11.2 (1983 rev.)), that all murder `perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder in the first degree and that ` "premeditated" means considered beforehand (CALJIC No. 8.20.1 (1979 rev.)). The instruction on first degree murder further provided: `If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder in the first degree. (Ibid.) [¶] Considered together, these instructions told the jury that an aider and abettor who shares the actual perpetrators intent to kill must have formed that intent beforehand." (People v. Williams (1997) 16 Cal.4th 635, 675-676.)
Here, the court instructed the jury with the instructions referenced in the above quote from Williams. Thus, in accord with Williams, we find that the court acted within its discretion when it refused to charge the jury with the instruction requested by the defense.
Luna contends Williams is distinguishable because it was based on the court charging the jury with the 1984 version of CALJIC No. 3.01. We disagree.
The only difference between the 1984 version of CALJIC No. 3.01 and the version used by the trial court here is that the first part of the 1984 instruction reads as follows: "A person aids and abets the commission of a crime when he or she, [¶] (1) shares the intent of the perpetrator . . ." (emphasis added). As noted above, the version of CALJIC No. 3.01 used by the trial court here, instead of referring to an aider and abettor "sharing the intent of the perpetrator," instructs the jury that a person abets the commission of a crime when he acts "with knowledge of the unlawful purpose of the perpetrator . . .." We find the slight change to the language of CALJIC No. 3.01 insignificant because there is nothing in the courts analysis in Williams that suggests that its analysis was based on the language which has been modified in the current version of CALJCI No. 3.01. Additionally, here, acting with knowledge of the perpetrators criminal purpose meets the same existent knowledge requirement as sharing the perpetrators intent.
We also reject Lunas contention that Williams is distinguishable because the prosecutor here misstated the law during his closing argument. Although the prosecutor erroneously argued that Luna was liable as an aider and abettor even if he only drove Rios away from the scene of the shooting, the jury received the standard CALJIC No. 1.00 instruction which provides, in pertinent part: "You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions." (Emphasis added.) The jury was also instructed that statements made by counsel were not evidence. Further, in the absence of any evidence to the contrary, we presume the jury properly applied and interpreted these instructions (People v. Tatman (1993) 20 Cal.App.4th 1, 11, see also People v. Wrest (1992) 3 Cal.4th 1088, 1111) and therefore did not rely upon the prosecutors erroneous interpretation of the law. This is especially true here because defense counsel correctly argued to the jury that Luna was guilty of aiding and abetting the charged offenses if he knew "ahead of time" that Rios was going to shoot the victims. Thus, in accord with Williams we reject Lunas claim of instructional error.
The Error in Lunas Abstract of Judgment
On August 30, 2002, the court sentenced Luna to 25 years to life for his murder conviction (count 1). After some discussion, the court sentenced Luna to a concurrent term of life with the possibility of parole for his attempted murder conviction (count 2) and a stayed term of four years on his assault conviction (count 3). In imposing a concurrent term on count 2, the court stated, "So I do sentence you to the term of life with the possibility of parole on count Two, but Im ordering it to run concurrent, which means at the same time as the 25-year-to-life term on count one." The clerks minutes for Lunas sentencing hearing also indicate that the court imposed a concurrent term on count 2. However, Lunas abstract of judgment erroneously indicates that the term on count 2 was imposed consecutive to the term on count 1.
Luna asks this court to direct the trial court to issue an amended abstract of judgment that unambiguously indicates that term imposed on count 2 should run concurrent to the term imposed on count 1. Respondent asks this court to remand this matter to the trial court so that it can clarify this matter. We find that the reporters transcript and the clerks minutes unambiguously indicate that the court imposed a concurrent term on count 2 and that the abstract of judgment contains a clerical error, which we will direct the court to correct.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment that clearly indicates that the court imposed a concurrent term on count 2 and to forward a certified copy to the Department of Corrections. In all other respects, the judgment is affirmed.