Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 05WF3659, John Conley, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J
Appellant Juan Manzanares stands convicted of special circumstance murder and other crimes stemming from a gang-related shooting at Santiago High School in Garden Grove. He contends the trial court misinstructed the jury in several respects and his attorney was ineffective for failing to challenge the admission of certain evidence. We find the court prejudicially erred in failing to properly instruct on an element of the special circumstance allegation. Accordingly we reverse the jury’s true finding as to that allegation and remand the matter for resentencing. In all other respects, we affirm the judgment.
FACTS
Appellant is a member of Hard Times, a criminal street gang whose enemies include the Santa Nita gang. Members of both gangs attend Santiago High School, and conflicts among them there are not uncommon. Thus, when appellant saw Abraham Ortega and three other Santa Nita members at the rear of the school one afternoon, he quickly sought out his fellow gang members. First he talked to Baltazar Moreno, and then they tracked down Juan Reyes, who was hanging out at the school quad with several other Hard Times members. Appellant told Reyes about the Santa Nita members, whom he derogatorily referred to as “chonklas,” and then he, Reyes and Moreno set out to confront them.
Along the way, appellant phoned Hard Times member Jesus Guerrero and told him to bring a gun to the scene. But appellant didn’t wait for Guerrero to arrive before instigating a confrontation. When his group reached Ortega and his companions, he asked them where they were from. Ortega replied Santa Nita, and Moreno yelled out something like, “Fuck Santa Nita, this is Hard Times.” With that, the two groups started fighting.
As the fight progressed, Hard Times supporter Rene Garcia joined in. Then Guerrero and Hard Times member Armando Solana came running up to the scene. Guerrero was holding a gun, and upon seeing him, the Santa Nita members retreated to a nearby jeep. As they started to drive away, Solano told Guerrero “not to do it here,” but someone else yelled “dump on him.” At that point, Guerrero fired several shots at the jeep, one of which struck and killed Ortega.
Appellant testified he asked Guerrero to bring a gun to the fight because he was worried the Santa Nita members might be armed. However, he thought the confrontation would be limited to a fistfight, and that at most, Guerrero would just have to wave the gun around in order to scare the Santa Nita members away. He did not think Guerrero was going to shoot anyone, nor did he intend for anyone to get killed that day.
Appellant was charged with murder, three counts of attempted murder, shooting at an occupied vehicle, shooting in a school zone and street terrorism. Gang and firearm enhancements were also charged, as was the special circumstance allegation that appellant intended to commit murder while he was an active participant in, and to further the activities of, a criminal street gang.
The prosecution argued appellant was guilty of murder under two different theories of aiding and abetting liability: 1) he aided and abetted Guerrero in carrying out the shooting, and 2) he aided and abetted the target crimes of assault, battery and disturbing the peace, and murder was a natural and probable consequence of those target crimes. The defense conceded appellant’s involvement in the shooting. However, it argued appellant was only guilty of manslaughter, not murder, because Guerrero acted in the heat of passion and in the imperfect defense of himself and others. The jury convicted on all counts and found the enhancement allegations to be true. The court thereupon sentenced appellant to life in prison without the possibility of parole.
Guerrero, Reyes, Moreno, Garcia and Solano were charged jointly with appellant. However, Moreno and Garcia pleaded guilty to manslaughter, and Guerrero, Reyes and Solano were tried separately from appellant. Solano was only found guilty of street terrorism, but Guerrero and Reyes were convicted of the same crimes and enhancements as appellant.
I
Appellant contends the court’s instructions on aiding and abetting were flawed in a variety of respects. Focusing on the court’s explanation of the natural and probable consequences doctrine in particular, he contends the court’s instructions were not only inaccurate and confusing, but legally erroneous as well. We find his arguments unavailing.
As a preliminary matter, we note that while appellant failed to object to the instructions at issue, we will consider his claims because they allegedly violated his substantial rights. (Pen. Code, § 1259; People v. Johnson (2004) 119 Cal.App.4th 976, 984.) However, in so doing, we must remember, “‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) We “‘“assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]”’” (Id. at p. 1111.) In determining whether instructional error has occurred, we must consider the record as a whole, including other instructions and argument by counsel. (People v. Cain (1995) 10 Cal.4th 1, 35-37; People v. McPeters (1992) 2 Cal.4th 1148, 1191.) Unless there is a reasonable likelihood the jury misunderstood the challenged instruction, we must uphold the court’s charge to the jury. (Ibid.)
In instructing the jury, the court explained, “The People are alleging that the defendant originally intended to aid and abet either disturbing the peace, simple assault, or simple battery. The defendant is guilty of murder if you decide that the defendant aided and abetted one of these three crimes, and the murder was the natural and probable result of one of these crimes.” Appellant contends this description of the prosecution’s theory was lacking, and effectively constituted an improper theory of culpability, because it permitted the jury to convict him of murder without finding that either he or Guerrero acted with malice.
In and of itself, the court’s description did not require such a finding. However, in instructing the jury on the natural and probable consequences doctrine, the court explained, “To prove that the defendant is guilty of murder as charged in count 1, the People must prove: [¶] Number one, the defendant is guilty of disturbing the peace by unlawfully fighting, or simple assault or simple battery. [¶] Two, during the commission of one of those three crimes a coparticipant in the crime committed the crime of murder. [¶] And, three, under all of the circumstances a reasonable person in defendant’s position would have known that the commission of murder was a natural and probable consequence of the commission of disturbing the peace by unlawfully fighting, simple assault, or simple battery.” (Italics added.)
The court also instructed the jury on the elements of those three target offenses and on the elements of murder, including malice. In addition, the parties’ closing arguments made it clear appellant could only be convicted of murder if Guerrero committed that offense. Therefore, contrary to appellant’s contention, the jury would have known that a finding of malice was required in order to convict him of murder under the natural and probable consequences doctrine.
That being the case, appellant’s next argument fails as well. He asserts the merger doctrine that applies in the context of the felony-murder rule when the alleged felony is an assault (People v. Ireland (1969) 70 Cal.2d 522 [rule inapt in that context because assault is an integral part of most homicides]) should also apply when the natural and probable consequences doctrine is premised on that offense. The argument is based on the assumption the jury was not required to find Ortega was killed with malice. But, as explained above, that was simply not the case. Moreover, as appellant admits, the argument was rejected by the courts in People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177-1178 and People v. Luparello (1986) 187 Cal.App.3d 410, 435-438. We agree with these decisions and find no reason for applying the merger doctrine in this case.
Appellant also faults the trial court for failing to explain the difference between first and second degree murder in instructing on the natural and probable consequences doctrine. Although the trial court did not do so at that time, it did later when instructing on the crime of murder. Specifically, it informed the jury that “if you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [¶]... [¶] All other murders are of the second degree. The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder, rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”
Considered in conjunction with the court’s instruction on the natural and probable consequences doctrine, these instructions reasonably alerted the jury to the fact it could only convict appellant of first degree murder under that doctrine if 1) the People proved all the requirements of that offense, and 2) its commission was a natural and probable consequence of the target crimes. There was no need for the court to reiterate the first point in instructing on the second.
Having determined the court properly instructed the jury on that doctrine, we now turn to appellant’s argument that, as a matter of law, the doctrine does not apply in cases where the target offenses are misdemeanors. The argument is derived not from case law but legislative intent. Particularly, appellant contends that permitting the doctrine to be used in this situation would undermine the Legislature’s determination that, in the absence of malice, only those crimes that are inherently dangerous to human life can serve as a predicate offense for murder. (See Pen. Code, § 189 [listing crimes that qualify as predicate offenses under the felony-murder rule].)
However, the law is well established that “where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his or her associates or confederates committed in furtherance of any prosecution of the common design for which they combine.” (People v. Kauffman (1907) 152 Cal. 331, 334, italics added.) Even when the initial unlawful act is only a misdemeanor, a defendant’s culpability may extend to the crime of murder if that crime is a natural and probable consequence of the targeted offense. (See, e.g., People v. Medina (2009) 46 Cal.4th 913; People v. Ayala (2010) 181 Cal.App.4th 1440; People v. Karapetyan, supra, 140 Cal.App.4th 1172; People v. Gonzales (2001) 87 Cal.App.4th 1; People v. Lucas (1997) 55 Cal.App.4th 721; People v. Olguin (1994) 31 Cal.App.4th 1355; People v. Solis (1993) 20 Cal.App.4th 264; People v. Godinez (1992) 2 Cal.App.4th 492.)
Appellant contends his actions in aiding and abetting a misdemeanor were more fittingly prosecuted under the misdemeanor-manslaughter rule than the natural and probable consequences doctrine. But the misdemeanor-manslaughter rule is intended for cases in which the killing is carried out without malice. (Pen. Code, § 192, subd. (b).) And here, the evidence readily suggests Ortega was gunned down with malicious intention. Because of this, and because the jury was required to so find before it could convict appellant of murder under the natural and probable consequences doctrine, the trial court did not err in instructing on this theory of liability. (Spivey v. Rocha (9th Cir. 1999) 194 F.3d 971, 976-977.) The circumstances of the shooting fully support appellant’s murder conviction under that theory.
II
Appellant also contends the court erred in failing to instruct on his main theories of defense, which were that Guerrero acted in the heat of passion and in the imperfect defense of himself and others. The court did in fact instruct on these theories, which, if applicable, would have reduced appellant’s conviction from murder to manslaughter. However, the court used the term “defendant” instead of “Guerrero” in explaining these theories to the jury. Appellant argues the jury would have taken this to mean the theories only applied if he, and not Guerrero, had the requisite state of mind, but we cannot agree.
For example, the court told the jury, “In order for heat of passion to reduce a murder to voluntary manslaughter the defendant must have acted under the direct and immediate influence of provocation[.]” (Italics added.) The court also instructed that “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another.” (Italics added.)
The court’s instructions made clear that appellant’s culpability for murder depended on whether he directly aided the perpetrator in committing that offense, or whether during the commission of one of the target offenses a coparticipant in those crimes committed the crime of murder. And throughout the case, Guerrero was specifically identified as the perpetrator and coparticipant who committed the alleged murder. In fact, the evidence left no doubt that he was the one who gunned down Ortega.
It was also apparent from the court’s charge that Guerrero’s state of mind was a key component of the case. In fact, at one point during its instructions, the court explained to the jury that in order to prove the element of premeditation, the People had that to show that “Jesus Guerrero... carefully weighed the considerations for and against his choice” before killing Ortega. (Italics added.)
The parties’ closing arguments also made it clear Guerrero’s intent was paramount to the case. In arguing the principles of vicarious liability, the prosecutor repeatedly described appellant as “stepping into the shoes” of Guerrero. This was the prosecutor’s way of saying that appellant was liable for Guerrero’s actions regardless of whether he shared Guerrero’s criminal intent. Of course, the flip side of this was that appellant could not be convicted of murder unless Guerrero acted with malice. That’s why in discussing the concepts of heat of passion and imperfect defense of self or others, defense counsel specifically directed the jury’s attention to Guerrero’s actions and beliefs in the moments before the shooting.
Based on everything it was told, it is not reasonably likely the jury construed the court’s instructions on voluntary manslaughter as being applicable to appellant’s state of mind. Rather, the record firmly supports the conclusion the jury was properly directed to consider Guerrero’s mental state in assessing whether the theories of heat of passion or imperfect defense of self or others applied in the case.
Moreover, the instructions made it clear that if Guerrero did act in the heat of passion or in the imperfect defense of himself or others, then appellant would only be guilty of manslaughter and not murder. Indeed, appellant could not be convicted of murder under the court’s aiding and abetting instructions unless another person, namely Guerrero, committed that offense. Therefore, the complained of instructions are not cause for reversal.
III
Next, appellant argues the court’s instructions on the special circumstance allegation were defective because they failed to inform the jury that, in order to find the allegation true, it had to find he personally intended to kill Ortega. This argument is well taken.
Appellant was charged with the special circumstance set forth in Penal Code section 190.2, subdivision 22, which, by its terms, applies when “[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang... and the murder was carried out to further the activities of the criminal street gang.” This provision can be applied to both the actual killer and an aider and abettor, but only if they both possess the intent to kill. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1085-1086.)
Here, the court told the jury that to prove the special circumstance is true, the People must show, “Number one: The defendant intentionally killed Abraham Ortega. [¶] Two, at the time of the killing the defendant was an active participant in a criminal street gang. [¶] Three, the defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity. [¶] And, four, the murder was carried out to further the activities of the criminal street gang.”
This instruction was correct to the extent it required the jury to find “the defendant,” i.e., appellant, acted with the intent to kill. The problem is, the instruction suggested it only applied to the person who killed Ortega, and that person was Guerrero, not appellant. This problem was exacerbated by the fact the court confused the defendant and Guerrero in several of its other instructions, as illustrated in the preceding section. Because of this, the jury may not have known the reference to “the defendant” in the special circumstance instruction actually pertained to appellant.
This possibility was enhanced by the prosecutor’s comments in closing argument. Throughout his argument, the prosecutor repeatedly reminded the jury that, under the natural and probable consequences doctrine, appellant was vicariously liable for Guerrero’s actions, regardless of whether he shared Guerrero’s criminal intent. He did so in arguing appellant’s guilt on the substantive offenses and he did so in arguing his guilt on the special circumstance allegation. Reiterating his theme of the case, he posited the allegation was true because, from a liability perspective, appellant is deemed to “stand[] in the shoes of Jesus Guerrero at the time of the killing.” In light of all these considerations, it is reasonably likely the jury incorrectly considered Guerrero’s state of mind in adjudicating the special circumstance allegation.
The Attorney General argues that doesn’t matter because, in the end, the only reasonable interpretation of the evidence is that appellant personally wanted to kill Guerrero. In so arguing, he relies on the fact appellant called Guerrero and told him to bring a gun to the fight. However, appellant testified he made the request because he thought the Santa Nita members might have weapons. Asked what he thought Guerrero was going to do with the gun, he said “just like scare them off, wave it... just so they [would] get scared or something.” He did not think Guerrero was going to kill anyone, nor did he intend for him to do so.
This testimony would not have availed appellant on the underlying charges because, under the natural and probable consequences doctrine, he was liable for Guerrero’s actions regardless of whether he shared Guerrero’s criminal intent. But it could have made a difference as far as the special circumstance allegation was concerned because, as we have explained, appellant’s own intent was dispositive as to that charge. Unfortunately, though, the prosecutor told the jury otherwise, and the court’s instructions did not clarify the issue. All things considered, we are simply not convinced beyond a reasonable doubt the failure to properly instruct the jury on the requisite intent for the special circumstance allegation was harmless error. (See generally People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [error in failing to properly instruct on element of enhancement is reviewed under the harmless beyond a reasonable doubt standard].) Therefore, the jury’s true finding on the allegation must be reversed.
IV
Lastly, appellant contends his attorney was ineffective for failing to ask the court to exclude the testimony of Garcia and Moreno, who were fighting alongside appellant at the time of the shooting. Appellant contends that, by virtue of their plea bargains, they were placed under a strong compulsion to testify in accordance with the prosecution’s theory of the case. The record does not bear this out.
A defendant alleging ineffective assistance of counsel “‘“must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.”’ [Citation.] Prejudice occurs only if the record demonstrates ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728.)
As our Supreme Court has explained, “when an ‘accomplice is granted immunity subject to the condition his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendant’s conviction [citation], the accomplice’s testimony is “tainted beyond redemption” [citation] and its admission denies the defendant a fair trial.’ [Citation.] But ‘an agreement requiring only that the witness testify fully and truthfully is valid.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 594.) No denial of a fair trial will be found where the accomplice remains “free to testify as she wished without having to subscribe to any particular version of events,” and the defense is given a “‘full and fair opportunity... to impeach [the accomplice’s] testimony and to argue her credibility to the jury.’ [Citation.]” (Id. at p. 595.)
Appellant does not dispute he had a full and fair opportunity to impeach Garcia and Moreno by virtue of their plea agreements and argue their credibility to the jury. However, he cites two passages from their testimony to support his position they were not free to contradict the prosecution’s theory of the case. Neither passage is persuasive in this regard.
During cross-examination, Garcia said that not everything in his plea agreement was true. Particularly, he took issue with the factual basis for the plea, insofar as it stated he acted with the specific intent to benefit the Hard Times gang. Garcia testified he possessed no such intent, but joined the fight merely to help his friends. Seizing on this issue, defense counsel asked Garcia, “There was no way to get your deal unless you said what the D.A. wrote for you, right?” Garcia admitted that was his understanding of the agreement.
Appellant argues this shows that, in order to get the deal, Garcia had to say what the prosecutor wanted him to say at trial. But the context of Garcia’s testimony indicates the statements about his going along with what “the D.A. wrote” for him were In reference to his plea agreement, not his trial testimony. That Garcia went along with what the prosecutor wrote in the agreement does not prove he was required to testify in the prosecution’s favor at trial. As a matter of fact, Garcia was clear in his testimony that under the agreement, he was required to “tell the truth” at trial, or the agreement would be “null and void.” There is no evidence the agreement tainted his testimony.
As for Moreno, appellant claims that although he originally told the police he was not present at the scene of the shooting, he was precluded under his plea agreement from testifying to that effect at trial. Actually, what Moreno said was the agreement simply precluded him from testifying falsely. And the only reason he couldn’t repeat his initial story to the police at trial was because that “would be lying” and he knew, that pursuant to his plea agreement, he “had to tell the truth.” Thus, it does not appear Moreno felt compelled to favor the prosecution in his testimony. That being the case, counsel was not ineffective for failing to move to exclude his testimony. No Sixth Amendment violation has been shown.
DISPOSITION
The jury’s true finding on the special circumstance allegation is reversed, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: O’LEARY, J., ARONSON, J.