Opinion
B295701
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. DAVID MOLINA, Defendant and Appellant.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle, Michael Katz, and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA143107 Teresa P. Magno, Judge. Reversed and remanded.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle, Michael Katz, and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
HOFFSTADT, J.
A jury convicted David Molina (defendant) of the attempted premeditated murder of a person he believed to be a rival gang member. On appeal, defendant argues that his conviction must be reversed because (1) one of the legal theories that supports his conviction is invalid, (2) the jury instructions were defective, and (3) there was insufficient evidence. In an opinion issued on April 30, 2021, we rejected defendant's arguments and affirmed his conviction. Our Legislature subsequently enacted Senate Bill No. 775 (Stats. 2021, ch. 551), which declares invalid one of the two legal theories supporting defendant's conviction; because the presentation of the now-invalid theory was not harmless beyond a reasonable doubt, we reverse defendant's conviction and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
At just past noon on a Tuesday in January 2017, defendant, Jerome Hooks (Hooks), and Stephen Cuevas (Cuevas) accosted a man exiting a liquor store.
The encounter took place in territory controlled by the 89 Family Swans street gang. Defendant, Hooks, and Cuevas are all members of that gang. Cuevas is defendant's cousin, and his protégé in the gang; to reflect this relationship, defendant's moniker is "Big TK Bandit," and Cuevas's is "Lil TK Bandit." During the incident, Cuevas was wearing a ballcap with a logo and in colors associated with the 89 Family Swans gang.
The incident in January 2017 started when defendant spotted a man he believed to be a member of a rival gang (the 7-Trey Crips) leaving a liquor store located within but at the edge of 89 Family Swans territory. Defendant and Hooks started to follow the man as he walked down the sidewalk toward his parked car. Cuevas joined defendant and Hooks in their approach momentarily, but then ducked into the liquor store and emerged holding his hand to his waistband and with the hood of his hoodie up.
As defendant, Hooks, and Cuevas caught up to the man, defendant started talking to the man. At first, the man ignored them but eventually turned to face them.
Defendant then stepped forward and squared off with the man as Hooks and Cuevas fanned out on either side of defendant in a semicircle around the man. Seconds later, defendant held out his arm to point at the man and Cuevas immediately thereafter pulled a revolver from his waistband and took aim at the man.
Upon seeing the gun, the man lunged toward Cuevas but defendant pulled him away. Cuevas fired a shot but the shot missed the man and shattered the glass door of a marijuana dispensary behind the melee. The man then grabbed defendant, and the two engaged in a pushing and shoving match with the man trying to keep defendant as a "shield" between himself and Cuevas.
Hooks then stepped forward and punched the man in the face. The man released defendant and then started to run down the street. As the man fled, Cuevas fired off a second shot. That shot also missed.
Defendant, Hooks, and Cuevas then ran away.
The following day, defendant was carrying a gun identical in "make and model" to the gun Cuevas used the day before; defendant was also with Hooks.
II. Procedural Background
A. The charge and allegations
The People charged defendant with a single count of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)). The People further alleged that (1) the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)), and (2) a principal in the crime had personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
B. Evidence at trial
The primary evidence at trial was surveillance video from the marijuana dispensary that showed the incident unfold from a variety of angles. The video had no audio track. An officer who had reviewed the video "several times" walked the jury through what was on the video, and offered still photographs from the video.
A gang expert familiar with the 89 Family Swans gang opined on street gang culture. Among other things, the expert opined that (1) gangs are territorial and place great "importance" on "defend[ing]" their territory "from encroachment" by rival gang members; (2) "gangs are all about status and respect"; (3) a rival gang member's presence in another gang's territory is a "sign of disrespect"; (4) when members of rival gangs confront one another, there is a "high" "probability [of] violence," ranging from a "physical fight" to gunplay, such that "hav[ing] a gun" is an "absolute[] necess[ity]" if gang members are going "to confront a rival gang member"; and (5) gang members who are "going out to commit a crime together" "know [which of them] has a gun."
Because Cuevas was the shooter, the trial court instructed the jury that defendant could be convicted of the attempted premeditated murder on one of two theories: (1) defendant aided and abetted Cuevas in the crime of attempted murder (the direct aiding and abetting theory), or (2) defendant engaged in the crime of "fighting or challenging someone to fight," Cuevas aided and abetted defendant in that fight or challenge, and the attempted murder committed by Cuevas was a "natural and probable consequence" of that fight or challenge (the natural and probable consequences theory).
The prosecutor argued both theories to the jury during closing arguments.
The jury found defendant guilty of attempted premeditated murder, and found true the gang and firearm allegations.
C. Posttrial motions, sentencing and appeals
Defendant moved for a new trial on the ground that Senate Bill 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) retroactively abolished liability for attempted murder under a natural and probable consequences theory. The trial court denied the motion.
The trial court sentenced defendant to prison for seven years to life. In imposing this sentence, the court struck the gang enhancement and imposed but stayed the 20-year firearm enhancement.
Defendant filed a timely appeal. On April 30, 2021, we issued an unpublished opinion affirming defendant's conviction and sentence. (People v. Molina (Apr. 30, 2021, B295701).) The Supreme Court granted review of the case on July 14, 2021, S269239. On December 29, 2021, after Senate Bill 775 was enacted, the Supreme Court remanded the case with directions to vacate our prior opinion and reconsider it in light of the new legislation. The parties then filed supplemental briefs on the impact of Senate Bill 775.
DISCUSSION
Defendant initially raised a plethora of challenges to his conviction, and those challenges can be grouped into three buckets-those challenging the legal validity of his conviction, those challenging the jury instructions, and those challenging the sufficiency of the evidence. He also challenged the accuracy of his date of birth recorded in several court documents. In light of the enactment of Senate Bill 775 and the reversal that it compels, we need not consider defendant's challenges to the jury instructions (because the challenges pertained only to the natural and probable consequences theory), and we need not consider defendant's challenge to the sufficiency of the evidence supporting his conviction under the natural and probable consequences theory.
I. Legal Validity of the Conviction
Defendant argues that his conviction of attempted premeditated murder is legally invalid. He offers a two-step argument: (1) the jury instructions precluded the jury from finding him guilty under a direct aiding and abetting theory, (2) he cannot be held liable for attempted premeditated murder on a natural and probable consequences theory because of (a) our Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), superseded by statute as stated in People v. Gentile (2020) 10 Cal.5th 830, 849, and (b) Senate Bill 1437. The validity of a legal theory of liability as well as jury instructions are questions of law we review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Mitchell (2019) 7 Cal.5th 561, 579.)
We reject the first step of defendant's argument.
Although the jury was instructed on both the direct aiding and abetting theory and the natural and probable consequences theory, defendant contends that the instructions precluded the jury from finding him guilty on a direct aiding and abetting theory because (1) the introductory sentence of the natural and probable consequences theory instruction stated, "Before you may decide whether the defendant is guilty of attempted murder, you must decide whether he is guilty of fighting or challenging someone to fight" (italics added), and the seemingly absolute nature of this command precluded the jury from also considering whether defendant directly aided and abetted Cuevas in committing attempted premeditated murder, and (2) the verdict form used the words "malice aforethought" when no jury instruction used those words.
Defendant's arguments lack merit.
To us, the highlighted language rendered the jury instructions confusing, not wrong on their face. On the one hand, the highlighted language seemed to indicate that a finding that defendant was guilty of fighting or challenging someone to fight-a prerequisite only to the natural and probable consequences theory-was something the jury must decide before rendering its verdict for attempted murder on any theory. On the other hand, the highlighted language was part of the jury instruction clearly labeled as defining the "natural and probable consequences" theory, which was separate from the instruction defining the direct "aiding and abetting" theory. Where, as here, the jury instructions '"as a whole"' are ambiguous, we ask '"whether there is a '"reasonable likelihood that the jury has applied the challenged instruction'"'" in the way the defendant asserts. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182.) We conclude that there is no reasonable likelihood that the jury read the highlighted phrase from the natural and probable consequences theory instruction to entirely negate the direct aiding and abetting theory instruction. The jury was given one instruction for each theory, and those theories were clearly labeled as distinct. What is more, both the prosecutor and the defense attorney repeatedly argued to the jury there were "two" "alternative theor[ies]" at issue in the case. (Accord, People v. Silveria and Travis (2020) 10 Cal.5th 195, 300 [argument of counsel may be considered in evaluating whether there was a reasonable likelihood of being misled].)
We therefore reject the People's concession that the instruction was legally incorrect on the ground that the trial court should not have given the CALCRIM No. 403 instruction in the first place. The CALCRIM No. 403 instruction the court gave is appropriate for cases, such as this one, where the so-called "target" crime (here, fighting or challenging to fight) is not separately charged. (CALCRIM No. 403, Notes.)
The verdict form's use of words not in the jury instructions is also of no moment because the "'form of the verdict generally is immaterial, so long as the intention of the jury to convict clearly may be seen.'" (People v. Jackson (2014) 58 Cal.4th 724, 750.) Here, the jury's verdict reflected a finding of guilt on the crime of attempted premeditated murder as well as on the enhancements, findings that the jury reaffirmed when being polled.
We also reject the second step of defendant's argument, and examine each of his proffered arguments separately.
A. Chiu-based argument
In Chiu, supra, 59 Cal.4th 155, our Supreme Court held that a defendant cannot be convicted of first degree, premeditated murder under a natural and probable consequences theory of liability because, in the court's view, "the legitimate public policy considerations of deterrence and culpability would" be better served by holding such aiders and abettors liable for, at most, second degree murder. (Id. at p. 166; People v. Hardy (2018) 5 Cal.5th 56, 92-93.) Defendant urges that this same logic should apply to the crime of attempted premeditated murder, such that his liability as an aider and abettor under a natural and probable consequences theory should be capped at attempted murder, not attempted premeditated murder.
Defendant's argument is inconsistent with our Supreme Court's decision in People v. Favor (2012) 54 Cal.4th 868 (Favor). Favor held that a defendant may be convicted of attempted premeditated murder based on a jury finding that attempted murder was a natural and probable consequence of the underlying crime he aided and abetted as long as the jury separately finds that the attempted murder was premeditated. (Id. at pp. 879-880.) More to the point, Favor remains good law because Chiu dealt with a different issue-namely, the public policy considerations underlying the crime of murder. (Accord, People v. Flores (2016) 2 Cal.App.5th 855, 869 [so holding].) Chiu did not speak to the considerations underlying the crime of attempted murder and, to the contrary, went out of its way to distinguish and preserve Favor. (Chiu, supra, 59 Cal.4th at p. 163.) Until our Supreme Court overrules Chiu, we are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)
B. Senate Bill 1437-based argument
Senate Bill 1437 amended the statutes defining murder to prohibit a murder conviction based solely upon a natural and probable consequences theory of liability. (§§ 188, subd. (a)(3), 189, subd. (e).) Defendant urges that Senate Bill 1437's prohibition should apply to the crime of attempted murder as well, and further contends that reading it otherwise violates the equal protection of the law.
In Senate Bill 775, our Legislature amended the law to provide that "[a] person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437." (§ 1170.95, subd. (g), italics added.) This amendment therefore establishes that (1) the crime of attempted murder may not rest on a natural and probable consequences theory of liability and (2) a defendant may raise this claim during the direct appeal of his conviction (which effectively overruled what our Supreme Court had previously held in People v. Gentile (2020) 10 Cal.5th 830, 851-852 (Gentile)). In light of this amendment, defendant's attempted premeditated murder conviction rests on one of two legal theories-one that is legally valid (that is, the direct aiding and abetting theory) and one that is now legally invalid (that is, the natural and probable consequences theory).
In such situations, we are tasked with assessing whether the trial court's error in instructing the jury on the now-invalid theory is harmless beyond a reasonable doubt. (People v. Aledamat (2019) 8 Cal.5th 1, 7-9, 13; Gentile, supra, 10 Cal.5th at p. 851; see generally Chapman v. California (1967) 386 U.S. 18, 24.) Applying this standard, we do not find that presenting the now-invalid natural and probable consequences theory to the jury was harmless beyond a reasonable doubt to the jury's determination that defendant is guilty of the crime of attempted premeditated murder. The prosecutor argued both theories to the jury (e.g., People v. Powell (2021) 63 Cal.App.5th 689, 715 [looking to whether the prosecutor argued the invalid theory]), the evidence at trial supported both theories, and the jury was never asked to specify which legal theory it adopted in coming to its guilty verdict. As a result, we have no way of knowing which theory the jury adopted. This uncertainty means that the instructional error in presenting a now-invalid theory to the jury was not harmless beyond a reasonable doubt.
The People resist this conclusion, arguing the verdict form's use of the active verb tense (rather than the passive tense) expressly shows the jury found defendant personally acted with "malice aforethought" when he committed the attempted murder. But the italicized language cannot bear the weight the People put on it. The language on a verdict form is not always dispositive because the findings reflected by that verdict form are a product of ""'the issues submitted to the jury and the instructions of the court.'"" (People v. Jones (1997) 58 Cal.App.4th 693, 710 (Jones), italics added; People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1273 [noting that the "form of the verdict is immaterial"].) This is why the language in a verdict form cannot be read in isolation and must instead be ""'construed in light'"" of those issues and instructions. (Jones, at p. 710.) Here, the instructions presented the jury with two possible routes to a guilty verdict on the attempted murder charge, and the verdict form the jury was given did not permit the jury to specify which of those two routes it traveled. This is not a case where the jury was given two guilty verdict forms for attempted murder-one grounded on a direct aiding and abetting theory (and using the phrase "malice aforethought") and another grounded on a natural and probable consequences theory (and omitting the phrase "malice aforethought"); in such an instance, we could infer that the jury's use of one verdict form rather than the other indicated the basis for its guilty verdict. Instead, the jury here was given a single, general guilty verdict form for the crime of attempted murder. In these circumstances, the presence of the phrase "malice aforethought" is not a proxy for a finding by the jury that defendant was guilty as a direct aider and abettor (and thus acted with the intent to kill that would render him ineligible for relief under section 1170.95 as a matter of law). What is more, the evidence in this case supported either theory.
Thus, we must reverse defendant's attempted premeditated murder conviction and remand for the People to determine whether to retry him on a direct aiding and abetting theory or whether to pursue some other disposition.
II. Sufficiency of the Evidence
As noted above, defendant's conviction for attempted premeditated murder rested on one of two theories: (1) defendant aided and abetted Cuevas in the crime of attempted murder, or (2) defendant committed the crime of fighting or attempting to fight with Cuevas's aid, Cuevas committed the crime of attempted premeditated murder, and attempted murder is a natural and probable consequence of the crime of fighting or attempting to fight on the facts of this case. Above, we have ruled that defendant's conviction must be reversed because the natural and probable consequences theory is no longer valid. This ruling obviates any need to assess the substantiality of the evidence underlying his conviction on that theory. However, because defendant is entitled to an acquittal if the evidence is insufficient to support a conviction on the sole remaining legally valid theory of direct aiding and abetting, we must still examine whether substantial evidence supports the conviction on that theory.
In determining whether there is sufficient evidence, we ask whether the record, as a whole and viewed in the light most favorable to the verdict, contains "'"substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (People v. Dalton (2019) 7 Cal.5th 166, 243.)
To prove defendant guilty of attempted premeditated murder on a direct aiding and abetting theory, the People have to prove (1) defendant knew of Cuevas's unlawful purpose to commit attempted murder, (2) defendant, by his act or advice, aided, promoted, encouraged or instigated Cuevas's commission of attempted murder, and (3) defendant acted with the intent to commit, encourage or facilitate Cuevas's commission of attempted murder-that is, with the intent to kill. (People v. McCoy (2001) 25 Cal.4th 1111, 1118; People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Lee (2003) 31 Cal.4th 613, 624.) Evidence of a defendant's knowledge and intent (the first and third elements) is "'almost inevitably circumstantial.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) Evidence "relevant" to whether a defendant has aided and abetted the perpetrator (the second element) includes "'presence at the scene of the crime, companionship, and conduct before and after the offense.'" (Id. at p. 1054.)
Substantial evidence supports the defendant's conviction of attempted premeditated murder under a direct aiding and abetting theory. Defendant's knowledge of Cuevas's purpose to commit murder, defendant's aid in that purpose, and defendant's intent to kill can be inferred from the coordinated manner in which defendant, Hooks, and Cuevas accosted the victim; defendant's role in instigating the confrontation; and defendant's role in directing Cuevas, given that Cuevas pulled out the gun moments after defendant pointed at the victim. Such "concerted action reasonably implies a common purpose." (People v. Campbell (1994) 25 Cal.App.4th 402, 409; accord, People v. Hill (1998) 17 Cal.4th 800, 851-852 [concerted action implies knowledge and intent]; People v. McDaniels (1980) 107 Cal.App.3d 898, 903-904 [same].) Defendant's knowledge and intent are further cemented by defendant's belief that the victim was a rival gang member, the victim's presence in 89 Family Swan territory, and the expert testimony that gang members will confront trespassing rival gang members and that such confrontations typically lead to violence.
Defendant challenges this conclusion with what boil down to four arguments.
First, he argues that the video showed Hooks and Cuevas crossing the street to meet up with defendant before the three of them moved in tandem to follow and accost the victim. Because the video captures the moment when all three 89 Family Swan members met up that day, defendant reasons that their meeting must have been serendipitous "happenstance." Whether they met up mere seconds or long hours before starting their assault on the victim, the coordinated manner in which they stalked and accosted their victim provides substantial evidence to support the jury's finding that they acted in concert and that defendant accordingly knew of and shared Cuevas's intent to kill. The cases defendant cites are inapposite. (People v. Tabizon (1958) 166 Cal.App.2d 271, 272-274 [presence in room containing narcotics does not constitute sufficient evidence of dominion or control]; In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330-331 [same].)
Second, defendant asserts that there was insufficient evidence to show he was aware Cuevas had a gun, and thus insufficient evidence that defendant knew of Cuevas's plan or that he intended to kill. This assertion lacks merit factually and legally. Factually, Cuevas drew the gun from his waistband immediately after defendant pointed at the victim; from this coordinated action, the jury could reasonably infer that defendant had signaled to Cuevas-his protégé and cousin-that then was the time to pull out the gun. Defendant had a gun of the same make and model the next day; from this and from the gang expert's testimony that gang members share weapons collectively, the jury could infer that it was the same gun and that defendant had dominion and control over it, both before and after the charged crime. What is more, the gang expert testified that gang members who are "going out to commit a crime together" "know [which of them] has a gun," and this is a permissible expert opinion about how gangs operate generally that provided the jury a basis to conclude that defendant knew about the gun. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew) [expert testimony regarding the "'culture and habits'" of gangs is permissible]; Olguin, supra, 31 Cal.App.4th at p. 1371 [testimony about what "gang members typically expect" is permissible]; Nguyen, supra, 61 Cal.4th at p. 1055 [same]; cf. Killebrew, at p. 658 [expert may not testify "that a specific individual had specific knowledge"]; In re Wing Y. (1977) 67 Cal.App.3d 69, 78-79 [evidence of gang membership alone not relevant to prove criminal conduct]; Spivey v. Rocha (9th Cir. 1999) 194 F.3d 971, 978 [evidence of gang membership to prove bias unduly prejudicial when other evidence of bias is admitted].) Legally, there can be sufficient evidence that a gang member intended to kill a rival gang member even without proof that the member knew one of his cohorts possessed a gun. (People v. Medina (2009) 46 Cal.4th 913, 924 (Medina); see also People v. Montes (1999) 74 Cal.App.4th 1050, 1056.)
Third, defendant contends that the gang expert's testimony regarding a gang's need to police its territory is irrelevant here because the 89 Family Swans gang had allowed a rival gang to operate the marijuana dispensary within but on the border of its territory, such that the 89 Family Swans gang must care less about its territory and such that defendant had no reason to confront the rival gang member. Although the dispensary was run by a different gang, the expert also opined that this was likely a begrudging accommodation because the other gang was more powerful than the 89 Family Swans and opined that it was not unusual for gangs to have irregularly shaped territories in any event. Based on this evidence, the jury could have reasonably inferred that the 89 Family Swans had greater incentive to patrol their territory from further encroachment rather than lesser incentive, as defendant contends.
Lastly, defendant urges that defendant's reaction after Cuevas pulled out the gun does not show defendant had the intent to kill. We disagree. After Cuevas pulled the gun on the victim, defendant did not express shock; instead, he stepped forward to prevent the victim from reaching Cuevas. The fact that defendant was in close proximity to the victim thereafter was not out of a desire to stop Cuevas from shooting, but instead because the victim grabbed defendant and tried to use him as a human shield to keep Cuevas at bay. And the fact that defendant and the others fled after Cuevas's second shot missed could reasonably be viewed by a jury as part of the common plan to evade capture once the confrontation was over. (Medina, supra, 46 Cal.4th at p. 924 [evidence that the defendants fled after the shooting was treated as an additional factor suggesting aiding and abetting liability].) Most importantly, the manner in which defendant, Hooks, and Cuevas worked together before Cuevas drew the gun was sufficient by itself to establish the existence of a common plan to kill the victim as well as defendant's knowledge of the plan and his intent to kill.
DISPOSITION
The conviction is reversed and remanded for the People to decide whether to retry defendant on a still-valid theory.
WE CONCUR: LUI, P. J., ASHMANN-GERST, J.