Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Nos. PA052556, PA054912. Alice C. Hill, Judge
Joanna McKim, under appointment by the Court of Appeal, for Mike W. Melendez, Defendant and Appellant.
Stephen Temko, under appointment by the Court of Appeal, for Oscar A. Velasquez, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for John Moses Nieto, Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
This appeal arises out of a Northridge gang rivalry shoot-out.
Mike Melendez and Oscar Velasquez appeal their convictions by jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189), two counts of premeditated attempted murder (§§ 664/187, subd. (a)), and two counts of assault with a firearm (§ 245, subd. (a)(2)) with special findings that a principal personally used and intentionally discharged a firearm (§§ 12022.53, subds. (b) & (e); 12022.53, subds. (c) & (e)(1)), proximately causing great bodily injury and death within the meaning of section 12022.53, subdivisions. (d) & (e)(1). The jury found that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), that Melendez personally used and intentionally discharged a firearm in the commission of the offenses (§ 12022.53, subds. (c), (d), & (e)(1)), and that Melendez personally and intentionally discharged a firearm that proximately caused great bodily injury and death within the meaning of section 12022.53, subdivisions (d) and (e)(1).
All statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced Melendez to 130 years to life state prison. Velasquez admitted a prior strike conviction (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)) and was sentenced to 153 years to life.
Appellant John Nieto pled guilty to voluntary manslaughter (§ 192, subd. (a)) and admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)). He was sentenced to 21 years state prison and appeals from an order denying his motion to withdraw the plea.
We affirm the judgment as to Nieto.
With respect to Melendez and Velasquez, we affirm the judgments of conviction but strike the gang and firearm enhancements on counts 4 and 5 for assault with a firearm. Because the trial court stayed the sentences on counts 4 and 5 (§ 654), the aggregate sentences remain the same: 130 years to life for Melendez and 153 years to life for Velasquez.
Facts
On the afternoon of July 19, 2005, Mike Melendez told John Nieto that the Brown Pride gang was in their neighborhood. He called the Brown Pride "brown pies" and wanted to fight them.
Melendez and Nieto belonged to the Bryant Street gang and were rivals of the Brown Pride. Alejandro Rodriguez, Alberto Idiarte and Oscar Velasquez, all affiliates or active members of the Bryant Street gang, were visiting Nieto.
Melendez wanted to fight the Brown Prides. Idiarte asked if he was "strapped," i.e., carrying a firearm. Melendez said that he was but "didn't want to use it, because it was too early" in the day.
The group drove in Melendez's Honda to an apartment complex in Brown Pride territory. Melendez parked in a back alley, retrieved a.357 caliber revolver from under the driver’s seat, and entered a patio area with Velasquez, Nieto, Idiarte, and Rodriguez. Armed with a golf club and a baseball bat, Nieto and Velasquez confronted Brown Pride gang members Herman Jiminez, Miguel Compean, and Rene Sanchez in the patio area. Jiminez was sitting on a tree stump; Sanchez and Compean were on a nearby flight of stairs.
Brandishing a baseball bat, Velasquez yelled "where you fools from?" It was a gang challenge. Someone yelled "Bryant Street."
Melendez started shooting and Jiminez reached for a weapon and shot back. One of the bullets, probably Melendez’s second shot, struck Jiminez in the head, killing him.
Nieto dropped the golf club and fled with Idiarte and Rodriguez. Velasquez and Melendez picked them up and drove back to Nieto's house. On the way back, Velasquez said, "Fuck Bean Pies."
That evening, Sanchez identified Velasquez as one of the persons standing next to the shooter and said that Velasquez was holding a bat or golf club. Compean identified Velasquez as the one who yelled the gang challenge and said that he was holding a bat or a golf club.
The police found a.357 caliber bullet in a tree stump that was shot from Melendez's revolver. Officers also found five nine millimeter shell casings and a semiautomatic nine millimeter handgun near Jiminez. A golf club was found in the back parking lot
Idiarte was tried as a juvenile and admitted the murder charge. Called as a witness by the prosecution, Idiarte said that Melendez, Velasquez, Nieto, and Rodriguez agreed to fight the rival gang. Idiarte accompanied them and witnessed the shooting. After returning to Nieto's house, some of them went swimming to wash off the gunshot residue.
Los Angeles Police Officer John Sawada, a gang expert, testified that Nieto, Idiarte, Velasquez, and Melendez were active members of Bryant Street, a criminal street gang with about 200 members. Bryant Street and Brown Pride were rivals and had an ongoing feud. Detective Sawada opined that the crimes were committed for the benefit of Bryant Street and testified that the gang's primary activities include murder, attempted murder, arson, extortion, witness intimidation, drive-by shootings, robbery, and burglary.
Wheeler Motion
Melendez and Velasquez argue that the trial court erred in denying their Wheeler motion (People v. Wheeler (1978) 22 Cal.3d 258) after the prosecution excused four Hispanic males from the jury. "Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. [Citations.]" (People v. Bonilla (2007) 41 Cal.4th 313, 341.) Where the defendant makes a prima facie showing that peremptory challenges were exercised for a discriminatory purpose, the burden shifts to the prosecution to show a race-neutral reason for the peremptories. The trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. (People v. Johnson (2006) 38 Cal.4th 1096, 1099.)
The prosecutor stated that he excused the first prospective juror. R.C., because the juror worked for the county health department and tested defendants for HIV in the courthouse. The prosecutor believed that R.C. would be sympathetic to a defendant in a criminal trial.
The prosecutor excused the next prospective juror, A.T., who had been a drug addict for 10 years, had fought gangsters, and had a prior misdemeanor conviction for sexual assault. When A.T. was young, he shot a firearm in the air twice and his mother took the weapon. The prosecutor believed that A.T. was biased against law enforcement and/or the prosecution.
The third prospective juror, D.G. lived in Sylmar and was a letter carrier as was his significant other. D.G. grew up in Sylmar and went to high school there, but claimed that he had never met a gang member even though Sylmar had a problem with gangs. The prosecutor believed that postal workers were biased against the prosecution and did not think D.G. was forthright in his answers.
The fourth prospective juror, P.C., had prior convictions for driving under the influence and assault. P.C. used to work in the music industry and dealt with gang members and gang affiliates who had served time. P.C. stated that there were a lot of gangs in his neighborhood where he grew up, that he had friends who were gang members, and that a high school friend was murdered in a drive-by-shooting trying to join a gang. P.C. had also been the victim of racial profiling when he was stopped for a broken taillight. The prosecutor excused P.C. because he believed that P.C. was biased against the prosecution. The prosecutor was concerned that P.C. worked for the media, was exposed to stories about gang violence and police corruption, had grown up with gang members, and had met gang members while working in the music industry.
The trial court found "that the moving parties have failed to establish by a preponderance of the evidence that the offered explanations are not genuine and are a sham.... The court finds that the reasons proffered by the prosecution to be credible and race and group neutral. The court does not find that the prosecutor's reason are pretext for systematic exclusion."
Appellants argue that the prosecutor’s stated reasons for excusing the prospective jurors was a sham and that peremptory challenges may not be based on a person's employment. "The proper focus of a Baston/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924.) It is settled that a peremptory challenge may be based on the occupation of a prospective juror. (E.g., People v. Barber (1988) 200 Cal.App.3d 378, 393-394 [peremptory challenge of kindergarten teacher]; People v. Trevino (1997) 55 Cal.App.4th 396, 411 [social worker]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [youth services worker].) Just as a defendant may excuse prospective jurors who work in law enforcement, the prosecution may exercise a peremptory challenge to excuse a prospective juror who, because of the person's occupation, life experience, or criminal record, may be biased against the prosecution. "If a prosecutor can lawfully peremptorily excuse a potential juror based on a hunch or suspicion, or because he does not like the potential juror's hairstyle, or because he observed the potential juror glare at him, or smile at the defendant or defense counsel, then surely he can challenge a potential juror whose occupation, in the prosecutor's subjective estimation would not render him or her the best type of juror to sit on the case for which the jury is being selected." (People v. Reynoso, supra, 31 Cal.4th at pp. 924-925.)
The prosecutor said he believed that postal workers might be sympathetic to the defense and exercised a peremptory challenge consistent with that belief. Similar peremptory challenges were exercised based on each prospective juror's employment or experience with gangs and the police. The trial court did not err in concluding that the prosecutor's stated reasons were genuine and race neutral. (Id., at p. 929.)
CALCRIM 3472 – Contrived Self Defense
Melendez and Velasquez argue that the trial court erred in instructing that “[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM 3472.) Appellants claim that the instruction should have been modified to state that one who initiates a quarrel to create the need for self-defense but not to provoke a deadly response, has the right to use self-defense if the victim responds in a sudden and unanticipated deadly counter-assault.
Appellants waived the alleged error by not objecting or requesting an amplifying instruction. (People v. Riggs (2008) 44 Cal.4th 248, 309; People v. Miceli (1951) 101 Cal.App.2d 643, 649 [defendant asserting self-defense claim must request amplification where defense is based on "sudden and perilous" counter assault].) Waiver aside, there was no violation of appellants' due process right to instruct on the law governing the case.
The jury received a series of self-defense instructions (CALCRIM 505 [justifiable homicide; self-defense or defense of another]; CALCRIM 3471 [right to self-defense; mutual combat or initial aggressor]; CALCRIM 3472 [right to self-defense; may not be contrived]) which instructed that a person who contrives the use of self-defense assumes the risk that the victim may respond with force. (See People v. v. Garvin (2003) 110 Cal.App.4th 484, 488-489 [discussing CALJIC 5.55, the equivalent of CALCRIM 3472]; 1 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2000) Defenses § 66, p. 401.)
Appellants argue that CALCRIM 3471 is contradictory because it states that an initial aggressor may use self-defense when the victim of a simple assault responds with a sudden and deadly counter-assault. But CALCRIM 3472 carves out an exception where the aggressor exploits the self-defense rule in advance. Read as a whole, the instructions satisfied the trial court's obligation to instruct on the general principles of law relevant to self-defense and self-defense not contrived. (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.)
The CALCRIM 3471 instruction stated: "A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] AND [¶] 2. He indicates, by word or conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; [¶] AND [¶] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [¶] If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting."
The alleged error, if any, in not giving a modified CALCRIM 3472 instruction was harmless. (People v. Breverman (1998) 19 Cal.4th 142, 178.) It was uncontroverted that appellants entered the patio area armed with weapons and surprised the victims. As Jiminez stood up to defend himself, Melendez fired.
Unlike People v. Quach, (2004) 116 Cal.App.4th 294, Melendez was the initial aggressor and used deadly force to provoke the shoot-out. Because an aggressor using deadly force generally forfeits the right of self-defense, the exceptions delineated in Quach do not apply. (See People v. Bolton (1979) 23 Cal.3d 208, 215 [defendant pointed gun at H; when H reached for his gun, defendant was bound to retreat.) The cases cited by appellants are inapposite and hold that "when the victim of a simple assault responds in a sudden deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonable necessary force in self-defense. [Citations.]" (People v. Gleghorn (1987) 193 Cal.App.3d 196, 201, emphasis added; People v. Quach, supra, 116 Cal.App.4th at pp. 301-302.)
The rule is contrary where the initial aggressor feloniously assaults the victim. (People v. Gleghorn, supra, 193 Cal.App.3d at p. 201.) " '[S]elf-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault to create a real or apparent necessity for making a felonious assault.' " (People v. Hinshaw (1924) 194 Cal. 1, 26.) Nor is self-defense "available as a plea to one who by prearranged duel, or by consent, has entered into a deadly mutual combat in which he slays his adversary." (People v. Hecker (1895) 109 Cal. 451, 462.)
Melendez speculates that Jiminez shot first because witnesses heard five or six shots. Renee Sanchez, however, saw the shooting and testified that Melendez's group fired the first shot. A.357 caliber bullet, probably the first shot fired, hit a tree stump. Jiminez shot back and Melendez fired a second shot, striking Jiminez in the head. Jiminez may have fired more shots. The coroner could not say how long it took for Jiminez to become unconscious.
Appellants defended on the theory that they intended to engage in mutual combat and acted in self-defense. The prosecution argued that the appellants initiated the shooting and the self-defense claim was contrived. The jury was instructed on both theories. The trial court had no sua sponte duty to give an amplifying instruction that was argumentative, would confuse the jury, or was contrary to the evidence. (See e.g., People v. Thomas (1990) 219 Cal.App.3d 134, 144-145; People v. Miceli, supra, 101 Cal.App.2d at p. 649.)
Heat of Passion
Melendez and Velasquez argue that the trial court erred in not sua sponte instructing on voluntary manslaughter and attempted manslaughter based on heat of passion. A trial court must instruct on lesser included offenses that find substantial support in the evidence. (People v. Breverman, supra, 19 Cal.4th at p. 162.) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could... conclude []" ' that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.)
In order to reduce murder to heat of passion voluntary manslaughter, provocation and heat of passion must be affirmatively demonstrated. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) "The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed subjectively.... '[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (Id., at pp. 1252-1253.)
A heat of passion instruction would have been improper because it was an unprovoked attack. (See e.g., People v. Moye (2009) 47 Cal.4th 537, 541.) Melendez armed himself, surprised the victims, and shot first. There was no evidence that the victims provoked the gun battle.
The jury was instructed: "A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. " It was instructed that provocation may reduce from first degree to second degree and may reduce a murder to manslaughter. (CALCRIM 522.) The trial court further instructed: "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." (CALCRIM 571.)
The jury rejected appellants' self-defense and imperfect self-defense theories, found there was no provocation negating the premeditation and deliberation, and convicted appellants of first degree murder and two counts of premeditated attempted murder. The evidence supports the convictions. Velasquez armed himself with the baseball bat, confronted the victims, and shouted the gang challenge. Melendez, acting on cue, shot at the victims. "There was no showing that [Melendez] exhibited anger, fury, or rage; thus, there was no evidence that [Melendez] 'actually, subjectively kill[ed] under the heat of passion.' [Citation.]" (People v. Manriguez (2005) 37 Cal.4th 547, 585.) Even if Melendez could satisfy the subjective requirement that he killed in the heat of passion, "the evidence of provocation was insufficient to satisfy the objective requirement, that is, that [appellant's] heat of passion resulted from sufficient provocation caused by the victim. Although the provocative conduct may be verbal,... such provocation 'must be such that an average, sober person would be so inflamed that he or she would lose reason of judgment.' [Citation.] That standard was not met here." (Id., at p.p. 585-586.)
Appellants claim that the trial court violated their due process rights by not sua sponte instructing on heat of passion voluntary manslaughter and attempted manslaughter. "But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." (Hopper v. Evans (1982) 456 U.S. 605, 611 [72 L.Ed.2d 367, 373]; People v. Holloway (2004) 33 Cal.4th 96, 141 [same; federal and state Constitutions not infringed where heat of passion manslaughter theory not supported by substantial evidence].)
Assuming arguendo it was error not to instruct on heat of passion voluntary manslaughter/attempted manslaughter, the error was harmless. (People v. Moye, supra, 47 Cal.4th at p. 541.) "[T]he jury considered virtually all of the defense evidence bearing on defendant's state of mind and the question whether he harbored malice when it entertained his claim of unreasonable or imperfect self-defense. Having rejected that claim, the jury likewise rejected the factual basis for a finding of provocation legally necessary to support a heat of passion/voluntary manslaughter defense." (Ibid.)
Melendez – Attempted Murder
Melendez argues that the evidence does not support the convictions for premeditated attempted murder. It is settled that the act of firing a lethal weapon at another at close range, without legal excuse, gives rise to the inference that the shooter acted with express malice. (People v. Smith (2005) 37 Cal.4th 733, 742.)
Melendez asserts that the evidence does not show planning, motive, or that the manner of the assault was so particular and exacting that he acted intentionally according to a preconceived design. But these factors are merely guidelines for proving premeditation and deliberation. (People v. Young (2005) 34 Cal.4th 1149, 1183.)
Motive and planning was evidenced by the gang rivalry and Melendez's plan to fight the rival gang. Melendez said that the Brown Pride was "slipping" and off-guard and did not expect an attack. Melendez drove his cohorts to the apartment, parked in the alley, armed himself with a loaded revolver, and entered the patio area from the back. The moment Velasquez shouted the gang challenge, Melendez fired. It was an unprovoked attack and strong evidence of premeditation and deliberation.
Attempted Murder – Kill Zone
Melendez and Velasquez argue the evidence does not support the finding that they intended to kill Compean and Sanchez because the shots were directed at Jiminez. The jury was instructed that "[a] person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone or harm or 'kill zone.'" (CALCRIM 600.)
Compean claimed that no one pointed or shot a handgun at him. But Compean was a hostile witness and did not want to testify against a gang member, even a rival gang member. The jury discredited Compean's testimony, and for good reason. When Melendez started shooting, Compean ran back and forth between the stairs. Sanchez was on the stairs and also ran for cover. He testified that the shots were directed at all three of them.
Whether Compean and Sanchez were in the line of fire was for the trier of fact to decide. A defendant "who shoots at a group of people may be punished for his actions towards everyone in the group even if he primarily targeted only one of them." (People v. Bland (2002) 28 Cal.4th 313, 329.) A jury may draw the inference that the primary intent to kill a specific target does not rule out a concurrent intent to kills others. (Id., at p. at p. 331, fn. 6.)
Although the first shot hit a tree stump, the law does not excuse poor marksmanship. If anything, it expanded the zone of harm. "[A] person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person." (People v. Stone (2009) 46 Cal.4th 131, 140.)
We reject the argument that trial court had a duty to define "kill zone" or that the term favors the prosecution. "CALCRIM No. 600 merely employs a term, "kill zone," which was coined by our Supreme Court in Bland and referred to in later California Supreme Court cases. [Citation.] It does not invite inferences favorable to either party and does not integrate facts of this case as argument to the jury." (People v. Campos (2007) 156 Cal.App.4th 1228, 1244.) Because the term "kill zone" is not used in a technical sense and is commonly understood, the trial court had no sua sponte duty to instruct as to its meaning. (Ibid.; see e.g., People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.)
Velasquez - Attempted Murder By An Aider and Abettor
Velasquez argues that the evidence does not support the convictions for attempted murder because he was convicted on aider and abettor and conspiracy theories. Attempted murder requires express malice, i.e. specific intent to kill, not implied malice. (People v. Collie (1981) 30 Cal.3d 43, 62,.)
The trial court instructed that the jury could convict based on aider and abettor/conspiracy liability if the attempted murders were the natural and probable consequence of the target offense, assault with a firearm. (CALCRIM 403.) Velasquez opines that the natural and probable consequences doctrine is a form of implied malice because an aider and abettor need not have the specific intent to kill.
Our courts have held that the natural and probable consequences doctrine in aiding and abetting situations can support a conviction of attempted murder. (See People v. Prettyman (1996) 14 Cal.4th 248, 262-263.) The specific intent necessary for conviction of an aider and abettor is not "the specific intent to kill, but the intent to ‘encourage and bring about conduct that is criminal.' " (People v. Olguin (1994) 31 Cal.App.4th 1355, 1379 [rejecting implied malice arguments for aider and abettor liability].)
As discussed in People v. Medina (2009) 46 Cal.4th 913, it is quite foreseeable that a gang related assault will result in murder or attempted murder, even if the aider and abettor does not know the principal is armed. " 'A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citations.]' " (Id., at p. 920.)
Appellants cite no published case holding that the natural and probable consequences is an analog for implied malice. There are, however, "a number of California cases which hold murder or attempted murder can be a natural and probable consequence of [aiding and abetting a] robbery." (People v. Cummins (2005) 127 Cal.App.4th 667, 677.) Here the evidence was overwhelming and established that the murder and attempted murders were a natural and probable consequence of the target offense (assault with a firearm). (People v. Medina, supra, 46 Cal.4th at p. 916.)
Jury Unanimity – Attempted Murder
Velasquez argues that the trial court erred in not giving a unanimity instruction (CALCRIM 3500) but such an instruction is not required where the acts alleged are so closely connected as to form part of one transaction. (People v. Benavides (2005) 35 Cal.4th 69, 98.)Velasquez’s conduct was part of one continuous transaction in which he participated in a deadly assault that resulted in the premeditated murder and attempted murder of rival gang members.
Because Velasquez was prosecuted on aiding and abetting/conspiracy theories, the jury was not required to unanimously agree on what overt act was committed or who was part of the conspiracy. (People v. Russo (2001) 25 Cal.4th 1124, 1135-1136; People v. Majors (1998) 18 Cal.4th 385, 408 [rejecting suggestion in People v. Melendez (1990) 224 Cal.App.3d 1420 that unanimity instruction required when jury simultaneously instructed on aiding and abetting and conspiracy theories].) Nor was the jury required to unanimously agree on what provocative acts were committed to carry out the ambush shooting. (See People v. Briscoe (2001) 92 Cal.App.4th 568, 591.)
We reject the argument that a unanimity instruction is compelled as a matter of federal due process (Id., at pp. 591-592.) "To prohibit a conspiracy [or aiding and abetting] conviction for want of a specific overt act under these circumstances would be... absurd." (People v. Russo, supra, 25 Cal.4th at p. 1136.) The error, if any, in failing to give a unanimity instruction was harmless under any standard of review. (See People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546 & fns. 7 & 9 [discussing Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] harmless beyond a reasonable doubt standard; and People v. Watson (1956) 46 Cal.2d 818 harmless error standard of review].)
Transferred Intent – Attempted Murder
Velasquez contends that the natural and probable consequences doctrine "allowed" the jury to convict him based on the theory that Melendez's intent to kill Compean and Sanchez was "transferred" to Velasquez. The classic doctrine of transferred intent applies when a defendant intends to kill one person but mistakenly kills another. (People v. Bland, supra, 28 Cal.4th at p. 317.)
Velasquez correctly notes that the doctrine of transferred intent does not apply to attempted murder. (Id., at pp. 326-329.) However, concurrent intent to kill may be shown under certain circumstances. (Id., at p. 330.) "Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. This situation is distinct from the "depraved heart" [i.e., implied malice] situation because the trier of fact may infer the actual intent to kill which is lacking in a "depraved heart" [implied malice] scenario.' [Citation.]" (Ibid.; see also People v. Stone (2009) 46 Cal.4th 131, 140.)
Consistent with Bland, the trial court instructed: "A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or 'kill zone.' In order to convict the defendant [Melendez] of the attempted murder of Rene Sanchez or Miguel Compean, the People must prove that the defendant not only intended to kill Herman Jiminez but also either intended to kill Rene Sanchez or Miguel Compean, or intended to kill anyone within the kill zone." (CALCRIM 600.) (See People v. Adams (2008) 169 Cal.App.4th 1009, 1023 [concurrent intent theory imposes attempted murder liability where defendant intentionally created a kill zone].)
As an aider and abettor, Velasquez was guilty not only of the intended target offense (assault with a deadly weapon), but any other crime Melendez committed that was a natural and probable consequence of the target offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123-1123.) The doctrine of transferred intent does not apply nor was it mentioned in the instructions. This is so because a conviction of premeditated attempted murder by an aider and abettor does not require that the aider and abettor have personally acted with deliberation and premeditation. (People v. Lee (2003) 31 Cal.4th 613, 616.) "[A]lthough each defendant must have the intent to kill, a defendant may be vicariously liable for the premeditated and deliberate component of the mens rea of an accomplice. [Citation.]" (People v. Concha (2009) 47 Cal.4th 653, __ [ 2009 DJDAR 16039, 16042].)
The jury was instructed: "The People are alleging that the defendant originally intended to aid and abet either assault with a deadly weapon or assault with force likely to produce great bodily injury. [¶] The defendant is guilty of murder or attempted murder if you decide that the defendant aided and abetted one of those crimes and the murder or attempted murder was the natural and probable result of one of these crimes."
Attempted Murder – Great Bodily Injury Firearm Enhancement
Melendez and Velasquez argue that the trial court erred in imposing 25-year-to-life firearm enhancements (§ 12022.53, subd, (d)) on the attempted murder counts because only one victim (Jiminez) suffered great bodily injury. In People v. Oates (2004) 32 Cal.4th 1048, our Supreme Court held that multiple firearm enhancements may be imposed based on a single injury. "Had the Legislature wanted to limit the number of [section 12022.53] subdivision (d) enhancements imposed to the number of injuries inflicted, or had it not wanted subdivision (d) to serve as the enhancement applicable to each qualifying conviction where there is only one qualifying injury, it could have said so." (Id., at p. 1056.)
Assault with a Firearm
Melendez and Velasquez argue that the convictions for assault with a firearm are not supported by the evidence because Compean and Sanchez were not in the line of fire. The is a restatement of the "kill zone" argument and a factual issue for the jury to decide. Substantial evidence supported the convictions for attempted murder and assault with a firearm. Sanchez testified that the Melendez group shot at Jimenez, Compean, and Sanchez. Although the first shot hit a tree stump, everyone in the patio area was in the kill zone.
Firearm and Gang Enhancements on the Assault Counts
Melendez and Velasquez argue that the firearm and gang enhancements (§§ 12022.53, subds. (a) – (d); 186.22, subd. (b)(1)(C)) on counts 4 and 5 for assault with a firearm must be stricken because the enhancements were not alleged in the first amended information. (See § 1170.1, subd. (e) [enhancements must be alleged in accusatory pleading].) The Attorney General agrees that the enhancements were not alleged and should be stricken. (People v. Neal (1984) 159 Cal.App.3d 69, 73.)
We strike the firearm and gang enhancements on counts 4 and 5 and need not discuss appellants' alternative argument that the enhancements are barred by section 654. (See People v. Rodriguez (2009) 47 Cal.4th 501, 507 [declining to discuss whether multiple enhancements are subject to section 654].) Because the trial court stayed the sentences on counts 4 and 5 for assault with a firearm, the total aggregate sentences (Melendez, 130 years to life; Velasquez, 153 years to life) remain the same.
Appellants correctly note that section 1170.1, subdivision (f) precludes the imposition of both a firearm use enhancement and a gang enhancement on the armed assault counts. (People v. Rodriguez, supra, 47 Cal.4th at p. 509.) The issue is moot.
Melendez was sentenced to 130 years to life based on the following sentence calculation: On count 1 for first degree murder, the trial court imposed a term of 25 years and added a consecutive term of 25 years to life on the firearm use enhancement (§ 12022.53, subd. (b)), resulting in a total aggregate term of 50 years to life.
Juror Misconduct
Melendez and Velasquez argue that the trial erred in not ordering a mistrial because the jurors and alternates were permitted to assemble in the jury room before the verdicts were read. After the jury reached a verdict, the signed verdicts were put in an envelope and the jury recessed for lunch. Before court reconvened, the bailiff had the alternates and the jurors wait in the jury room and warned the jurors not to discuss the case with the alternates.
Melendez and Velasquez argue that the unauthorized presence of an alternate juror in a jury deliberation room is reversible error. (§ 1089; People v. Adame (1973) 36 Cal.App.3d 402, 408-409.) The cases cited by appellants are distinguishable and involve instances in which alternate jurors were permitted to watch and listen to jury deliberations. (Id., at p. 409; People v. Bruneman (1935) 4 Cal.App.2d 75, 80-81.)
Here the jurors and alternates were placed in the same room after the jury finished deliberations and signed the verdict forms. No one opened the envelope containing the signed verdicts and none of the jurors discussed the case with the alternates before the verdicts were entered.
The trial court reasonably concluded that assembly of the alternate jurors and jurors in the same room was harmless. A similar error could arise where jurors and alternate jurors use the same elevator to enter or leave the courthouse. There was no evidence that the alternates participated in or influenced the deliberations, discussed the case with the jurors, or that the signed verdicts were changed after the alternates assembled in the jury room. (See e.g., People v. French (1939) 12 Cal.2d 720, 770-771 [presence of alternate jurors with regular jurors after submission of case but before commencement of deliberations not prejudicial]; People v. Valles (1979) 24 Cal.3d 121, 127-128 [counsel stipulated to presence of alternates in jury room during deliberations; no prejudice].) Appellants claim that the presence of alternates in the jury room violated the sanctity of the deliberative process but the error was harmless and did not prejudice appellants' right to a jury trial. (Chapman v. California, supra, 386 U.S. at p.24 [17 L.Ed.2d at pp. 710-711; People v. Oliver (1987) 196 Cal.App.3d 423, 435-436.)
Due Process Right to Fair Trial
Melendez's and Velasquez's remaining arguments have been considered and merit no further discussion. Appellants make no showing that the alleged instructional errors, jury selection process, or assembly of alternate jurors and jurors in the same room violated appellants' due process right to a fair trial. The evidence was overwhelming, refuted all defense theories, and clearly supported the finding that appellants carried out an ambush shoot-out. As in every sufficiency-of-the-evidence case, "[t]he test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432.) We may not substitute our judgment for that of the jury, reweigh the evidence, or reevalutate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Nieto – Motion to Withdraw Plea
Nieto argues that the trial court abused its discretion in denying his motion to withdraw the plea. (§ 1018.) On November 21, 2007, Nieto entered into a plea agreement in which he pled guilty to voluntary manslaughter and admitted a gang enhancement in exchange for a 21 year sentence. Nieto was represented by counsel and stated that he was entering the plea voluntarily and knowingly.
During the change of plea, Nieto was asked if he understood that "buyer's remorse" was not grounds for withdrawing the plea. The prosecutor explained: "If you regret pleading guilty, let's say in two weeks and you decide, you know what, I really didn't want to do that, you don't get to come back to court and say, 'you know what, I didn't want to plead guilty.' "
Nieto stated that he understood and said that he was entering the change of plea freely and voluntarily because it was in his best interest to do so.
On January 22, 2008, two months later, Nieto agreed to continue the sentencing hearing but wanted to represent himself and to withdraw his plea. The trial court warned that "a lot of decisions have already been made in this case" and admonished Nieto about the risks of representing himself. Nieto said "I can't really understand the words" and asked for a Spanish translator. Nieto acknowledged that he had lived in the United States his entire life, was schooled in English, and had finished middle school. Nieto said that his plan was to "speak for myself" at sentencing or at trial and wanted an interpreter "to do all my proceedings in court."
The trial court denied the request for an interpreter and denied the Faretta motion (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]) after Nieto said that he did not understand some of the questions on the Faretta form.
Following a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118), the trial court appointed independent counsel to advise Nieto whether he had a basis to withdraw the plea. Independent counsel spoke to Nieto and reported that she had no difficulty communicating with Nieto in English. Counsel further opined that the negotiated plea was "an achievement" and "enormously favorable" to Nieto, and that there were no grounds to justify a motion to withdraw the plea.
At the next hearing, Nieto was permitted to argue his motion to withdraw the plea and was provided assistance of independent counsel. Nieto claimed that he was "brainwashed" by his family, his court appointed attorney, and the prosecutor. He claimed that the prosecutor, his parents, and his attorney told him that jurors "are sick people and that I wouldn't want to go to trial. By walking in the jury trial, they [would] look at me and hang me."
The trial court denied the motion to withdraw the plea, finding that the change of plea was freely and voluntarily made with an understanding of the consequences. "[T]he bottom line is there's really nothing I heard that satisfies me that your plea ought to be withdrawn. I think just to the contrary. You had a tough decision to make and you made it, and perhaps you’re feeling bad about the decision you made, and I understand that, but there’s nothing about what you told me today that would make it appropriate to withdraw the plea."
A defendant may not withdraw his or her plea absent clear and convincing evidence that he entered the plea due to mistake, ignorance, or some other factor overcoming his free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) Nieto's claim that his family pressured him to enter the change of plea is not supported by the evidence or enough to constitute duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) "Nothing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (Ibid.)
Nieto was advised by his trial attorney and the prosecutor that he was facing a sentence of 50 years to life and that by agreeing to the negotiated plea, he would receive a determinate 21 year sentence. He was given several days to consider the offer, discussed the matter with his attorney and his mother, and was warned that he could not withdraw the plea once the change of plea was entered.
Nieto, however, tried to manipulate the trial court for a better deal. A defendant cannot play "the Faretta game" by juggling his Faretta rights with his right to counsel, interspersed with Marsden motions to delay the proceedings. (See e.g., People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) Independent counsel was appointed, discussed the case with Nieto, and advised the court that Nieto understood what was going on and had no difficulty understanding English.
Nieto was provided independent counsel and personally argued the motion to withdraw the plea. (See People v. Osorio (1987) 194 Cal.App.3d 183, 188-189: People v. Brown (1986) 179 Cal.App.3d 207, 216.) The prosecution, in opposing the motion to withdraw the plea, denied coercing Nieto and stated that Nieto was given a week and a half to consider the plea offer. Had Nieto not accepted the negotiated plea and gone to trial with Melendez and Velasquez, the prosecutor believed that the jury would have found that Nieto participated in the murder and attempted murders.
The trial court did not abuse its discretion in denying the motion to withdraw the plea. (See e.g., People v. Nance (1991) 1 Cal.App.4th 1453, 1456 [plea may not be withdrawn simply because defendant changed his mind].) Once entered, a negotiated plea may not be withdrawn or set aside absent clear and convincing evidence that the ends of justice would be subserved by permitting a change of plea to not guilty. (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. [Citations.]" (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
Conclusion
The judgment is affirmed as to Nieto.
With respect to Melendez and Velasquez, we affirm the judgments of conviction but strike the firearm enhancements (§ 12022.5, subds. (a) - (d)) and the gang enhancements (§ 186.22, subd. (b)(1)(B)) on counts 4 and 5 for assault with a firearm. The judgment is modified to reflect that four year sentences were imposed on counts 4 and 5 for assault with a firearm, that no enhancements were imposed on those counts, and that the four-year sentences were stayed pursuant to section 654. The total aggregate sentence remains the same: 130 years to life for Melendez and 153 years to life for Velasquez. The trial court is directed to amend the abstract of judgments as to Melendez and Velasquez and to forward certified copies to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., PERREN, J.
(CALCRIM 403.)
On count 2 for premeditated attempted murder, Melendez was sentenced 15 years to life plus 25 years to life on the firearm use enhancement (§ 12022.53, subd. (d)) for a total aggregate term of 40 years to life, to run consecutive to the sentence on count 1. The court imposed the same term (40 years to life) on count 3 for premeditated attempted murder to run consecutive to the sentence in count 1, for a total aggregate sentence of 130 years to life.
The trial court imposed and stayed the terms on the other enhancement findings on counts 1 through 5, and imposed a four year upper term on counts 4 and 5 for assault with a firearm which was stayed.
Velasquez was sentenced to 153 years to life based on the following sentence calculation: On count 1 for first degree murder, the trial court imposed a term of 25 years to life and doubled the sentence based on the prior strike conviction. The trial court added a consecutive term of 25 years to life on the firearm use enhancement (§ 12022.53, subd. (b)), resulting in a total aggregate term of 75 years to life.
On count 2 for premeditated attempted murder, Velasquez was sentenced to 7 years to life. The trial court doubled the sentence based on the prior strike conviction and added a consecutive term of 25 years to life on the firearm use enhancement (§ 12022.53, subd. (d)), for a total aggregate term of 39 years to life to run consecutive to the sentence in count 1. The court imposed the same term (39 years to life) on count 3 for premeditated attempted murder, to run consecutive to the sentence in count 1, resulting in a total aggregate sentence of 153 years to life.
The court imposed and stayed the terms on the other enhancement findings on counts 1 through 5, and imposed a four year upper term on counts 4 and 5 for assault with a firearm which was stayed.