Opinion
B191245.
5-16-2008
THE PEOPLE, Plaintiff and Respondent, v. LEONARDO PADERNAL et al., Defendants and Appellants.
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant Leonardo Padernal. John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Jose Daniel Aguilar. RJ Manuelian, under appointment by the Court of Appeal, for Defendant and Appellant Michael Vasquez. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendants and appellants, Leonardo Padernal, Jose Daniel Aguilar and Michael Vasquez, appeal from the judgments entered following their convictions, by jury trial. Padernal was convicted of second degree murder, attempted premeditated murder of a peace officer (11 counts), assault on a peace officer with a semi-automatic firearm (6 counts), possession of firearm by a felon, and evading an officer with willful disregard for safety, with principal armed and firearm use enhancements (Pen. Code, §§ 187, 664/187, 245, subd. (d)(2), 12021, 12022, 12022.53; Veh. Code, § 2800.2, subd. (a)). He was sentenced to 228 years to life. Aguilar was convicted of attempted premeditated murder of a peace officer (9 counts), assault on a peace officer with a semi-automatic firearm (6 counts), and possession of a firearm by a felon, with firearm use enhancements (§§ 664/187, 245, subd. (d)(2), 12021, 12022.53). He was sentenced to 255 years to life. Vasquez was convicted of attempted premeditated murder of a peace office (4 counts) and assault on a peace officer with a semi-automatic firearm (4 counts), with principal armed enhancements (§§ 664/187, 245, subd. (d)(2), 12022.) He was sentenced to 16 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
All three defendants contend there was trial error. Padernal and the Attorney General contend there was sentencing error.
Padernals judgment is affirmed as modified. The judgments as to Aguilar and Vasquez are affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
On December 19, 2002, at about 2:00 a.m., Los Angeles Police Officers Roger Fontes and Peter Galan saw a dark-colored Toyota Camry speeding on Country Club Drive. There were four people in the car, later identified as follows: Leonardo Padernal was driving; Jose Aguilar was the front seat passenger; Michael Vasquez and Carlos Correa were sitting in the back seat, Vasquez on the right side behind Aguilar and Correa on the left side. The officers activated an overhead light and gave a short blast on the siren, but the Toyota kept going. It went south on Western Avenue and turned onto Olympic Blvd. Then, all of a sudden, the Toyota pulled over to the curb. As Fontes and Galan stepped out of their patrol car, the Toyota suddenly made a U-turn and sped away down Western. The officers gave chase, activating their full lights and requesting backup.
The Toyota turned off Western onto 12th Street and stopped again. Fontes and Galan pulled up a couple of car lengths behind. Padernal got out of the Toyota holding a long-barreled rifle. He brought the rifle to his shoulder and began shooting at the officers, who fired back. Padernal jumped back into the Toyota and drove off. Fontes and Galan pursued, but smoke was coming from their patrol car, which then gave out; it had sustained 34 bullet strikes.
Officers Richard Estevez and Javier Borrego had responded to the backup request. After passing Fontes and Galans disabled car, they spotted the Toyota and activated their lights and sirens. The Toyota was running stop lights and reaching speeds close to 70 or 80 mph. On Vermont Avenue, just south of Wilshire, the Toyota turned into a parking structure. Borrego and Estevez stopped just past the entrance ramp leading up to the parking structure and went up the ramp on foot. Suddenly, they heard screeching tires and saw the Toyotas headlights as it came rushing straight at them. Estevez and Borrego had to jump out of the way to avoid being hit. The Toyota did not slow down or swerve to avoid them.
In the meantime, Officers Victor Aguilar and Don Byeon arrived at the parking structure. They saw Borrego and Estevez going up the entrance ramp, and Aguilar followed them. He heard squealing tires and saw the Toyota coming fast in his direction. He had to jump out of the way to avoid being hit. As he did so, Aguilar saw the front seat passenger attempting to load a gun. As the Toyota turned onto Vermont, Aguilar heard several gunshots and saw a muzzle flash inside the Toyota.
Officers Ralph Camarillo and Ramon Barajas, who responded to the backup request, arrived at the parking structure. They saw officers going up the entrance ramp on foot, heard gunfire, and saw the Toyota speed down the ramp. The Toyota stopped at the bottom of the ramp for a split second, then quickly accelerated and skidded. As it was turning, Camarillo saw a muzzle flash come from the Toyota and felt something fly by his ear. He knew he was being shot at, and that someone other than the driver must have been the gunman because the driver had both his hands on the steering wheel. Barajas also saw two muzzle flashes that appeared to be aimed in his direction. Camarillo drew his gun and fired one shot in the direction of the muzzle flash. At just about the same time, he felt another bullet fly by his ear.
Officers Eduardo Mendez and Christopher Chavez, who had also responded to the backup request, arrived. As they drove up, Mendez heard loud screeching tires and saw the Toyota come speeding down the ramp. Chavez saw the Toyota come down the ramp and officers scrambling to get out of the way. Chavez testified that as the Toyota turned onto Vermont, he heard five or six gunshots; the initial shots seemed to be from a rifle, and the other shots from a smaller-caliber weapon.
Helen Boyd was working that night as a security guard for a bank building adjacent to the parking structure. Her duties included control of the parking garage. She had her gate open, waiting for a maintenance worker to leave, when she heard "burning rubber" and "police sirens." She saw a small black car drive up the entrance ramp and into the garage. There was a man leaning out the right rear passenger window pointing a shotgun back toward a police officer who was on the ramp. Boyd also saw a man in the front passenger seat who appeared to be fumbling with something in front of him. The car made a quick turn and went right back down the entrance ramp, almost hitting the officer.
After the Toyota left the parking structure, another high-speed chase ensued. Officers Mendez and Chavez became the primary pursuit unit, following the Toyota down Wilshire. They could see the driver and the front seat passenger through the completely blown out rear window. Mendez testified someone inside the Toyota fired at them several times. The first time, he was within two car-lengths of the Toyota when he heard three or four gunshots and saw a muzzle flash. He heard bullets hitting the hood of his patrol car and he ducked down. Chavez heard four or five gunshots that sounded like they came from a high-powered rifle.
Near Wilshire and Western, Mendez saw the front seat passenger lean back and look over his left shoulder while holding something in his right hand. Mendez heard another three or four gunshots and saw muzzle flashes coming from the front passenger seat. Mendez ducked again and moved his car to the right to try to get out of the line of fire. Chavez heard something hit their patrol car. There were one or two subsequent volleys of gunfire. Each time, Mendez took evasive action by ducking down and driving as close to the right side of the street as possible.
Officers Isaias Ornelas and Craig Heredia joined the chase at Wilshire and New Hampshire Avenue, becoming the secondary pursuit unit. They were sometimes as close as 100 yards from the Toyota, sometimes as far as 400 yards. Ornelas saw a muzzle flash come toward him from the right side of the Toyota and he heard gunfire. When he saw the muzzle flash, there was nothing between him and the Toyota. Ornelas and Heredia heard between five and ten gunshots, and they either heard or felt bullets hitting their patrol car. As the chase continued, there were more volleys of gunfire. There were muzzle flashes coming from the same general area as before and the impact of bullets hitting their patrol car.
The Toyotas left front tire blew out and began to disintegrate, but Padernal kept driving. He went east on Pico Blvd, all the way past the Staples Center. At Hill and 18th Streets, he went through a red light and collided with a truck. The Toyota hit a tree, flipped over and came to a rest on its tires near an alley. Padernal and Aguilar jumped out and ran into the alley. As they ran, they dropped various items onto the ground, including the magazine from an assault rifle. When they were apprehended, Padernal was hiding behind some cardboard boxes and Aguilar was hiding behind a parked van. Near the van, police found two rifle magazines; one contained 7.62-by-39 caliber ammunition, and the other .223-caliber ammunition.
Vasquez was arrested when he got out of the right rear passenger door of the Toyota. Correas body was on the left side of the rear seat; he had been shot twice. The fatal bullet had entered his upper back and passed through his heart. The medical examiner testified Correa would have lost consciousness from this wound within 20 seconds to a minute, and would have died within three minutes. The other bullet, which had entered Correas lower back, was recovered; it had come from Officer Galans gun.
On Vasquezs side of the back seat, police found a revolver holding live rounds and expended cartridges, and a bandoleer of shotgun shells. In the front seat area there was a shotgun and an assault rifle. The assault rifle had a scope. So equipped, it would be possible to hit a target up to 500 or 600 yards away. The assault rifle had two 7.62-by-39 caliber rounds jammed in the chamber. The rifle had jammed because these rounds were too large; the proper ammunition for this assault rifle was .223 caliber.
The Toyota had sustained 30 primary bullet strikes, most of them traveling from back to front. Four of the front-to-back bullet paths were consistent with a gunman sitting in the front seat and firing through the rear window. A criminalist testified it would have been "cumbersome" for the passenger in the back seat to have been firing the rifle out the rear window: "I would have to hold it with the fore-end in one hand, and fire with most likely the thumb. It could be done, it would be cumbersome."
2. Defense evidence.
a. Defendant Aguilar.
Officer Steven Cornell had witnessed the pursuit on Wilshire from a helicopter. Cornells clearest view of the Toyota was on the passenger side; he could see one person in the back seat and another in the front passenger seat. He never saw the front seat passenger holding a weapon. At one point he saw the back seat passenger lean out the left rear window, face back toward a pursuing police car, and point what looked like a shoulder weapon. At least one other time during the pursuit, Cornell saw similar behavior from the left rear passenger.
b. Defendant Vasquez.
Officer Estevez took a very brief statement from Boyd, the security guard, at the scene. Boyd said she was sitting in her car when she saw the Toyota. She ducked down because she feared the Toyota was going to crash into her car. She did not say she had seen someone lean out the right rear passenger window and point a rifle toward the entrance ramp.
c. Defendant Padernal.
Padernal did not present any evidence.
3. Prosecution rebuttal evidence.
Within hours of the incident, detectives held a tape-recorded interview with Boyd, who said she had been sitting in her car with the door open when she saw a car coming up the ramp toward her. She thought the car was going to slide into her. She saw three Hispanic men in the car: the driver, a front seat passenger and someone in the back on the passenger side. The person in the back was holding a gun with a long barrel out the window.
CONTENTIONS
All of the defendants join in the issues raised and the arguments made by each other.
1. There was insufficient evidence, as to counts 3, 4 and 9, that the attempted murders committed by Padernal had been premeditated and deliberated.
2. There was insufficient evidence to prove Aguilar aided and abetted the attempted murders charged in counts 3, 4 and 9.
3. There was insufficient evidence, as to counts 10, 11, 31 and 32, that Aguilar was the gunman.
4. The trial court erred by failing to instruct, in connection with counts 3, 4 and 9, on the distinction between aiding and abetting and accessory after the fact.
5. The aiding and abetting instructions were defective because the trial court failed to correct the prosecutors misstatement of the required intent element.
6. The trial court erred by giving a "kill zone" instruction (CALJIC No. 8.66.1), and the prosecutor misstated the relevant law during closing argument.
7. There was insufficient evidence to sustain Vasquezs convictions for the attack on Officers Mendez, Chavez, Heredia and Ornelas.
8. Vasquezs convictions on counts 16, 17, 20, 21 and 33-36 must be reversed because they were inconsistent with other verdicts.
9. The trial court erred by not requiring the jury to find Vasquez specifically intended to kill each of the officers named in counts 16, 17, 20 and 21.
10. There was cumulative error.
11. The trial court erred by imposing certain consecutive sentences on Padernal.
12. The trial court improperly awarded Padernal presentence conduct credit.
DISCUSSION
1. Sufficient evidence the attempted murders in counts 3, 4 and 9 were premeditated and deliberated.
Defendants contend there was insufficient evidence to prove Padernals attempted murders of Officers Borrego, Estevez and Aguilar (counts 3, 4 and 9) were premeditated and deliberated. This claim is meritless.
a. Legal principles.
"In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.]" [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.)
People v. Anderson (1968) 70 Cal.2d 15, 26-27, a murder case, discussed the following types of premeditation and deliberation evidence: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as `planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a `motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of `a pre-existing reflection and `careful thought and weighing of considerations rather than `mere unconsidered or rash impulse hastily executed [Citation.]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a `preconceived design to take his victims life in a particular way for a `reason which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)."
"We do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation. [Citation.]" (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.)
The Anderson factors do not establish normative rules, but instead provide guidelines for a reviewing courts analysis. (People v. Sanchez (1995) 12 Cal.4th 1, 32.) Thus, the Anderson factors are not a sine qua non to finding deliberation and premeditation, nor are they exclusive. (Ibid; People v. Davis (1995) 10 Cal.4th 463, 511 [Anderson factors are descriptive, not normative]; People v. Raley (1992) 2 Cal.4th 870, 886 [when evidence of all three Anderson factors is not present, appellate courts look for either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing].)
b. Discussion.
Padernal argues there was insufficient evidence to prove the attempted murders of Officers Borrego, Estevez and Aguilar on the parking structure ramp were premeditated and deliberated. He asserts there was no evidence he had even seen the officers on the ramp: "Just as the officers could not see the vehicle until it was almost upon them, there is no evidence that the officers could be or were seen by appellant, who was merely attempting to continue his flight." Not so. Estevez and Borrego testified they had gone far enough up the entrance ramp to see into the garage by the time the Toyota came at them. Both officers saw the Toyotas headlights coming at them before they had to jump out of the way. Moreover, Officer Aguilar testified he could see Padernal as the Toyota came down the ramp. At first Padernal was hunched over the steering wheel, but then he popped his head up and looked right toward Aguilar.
Estevez testified he was just six feet from the top of the ramp, where it leveled off into the first parking level. Borrego testified he was behind Estevez and that he had reached about the middle of the ramp, from where he too could see into the first parking level.
Aguilar testified, "His face was down towards the steering, like holding the steering wheel up. His head was below his hands and [I] saw him pop [up] once, look at me and look at where he was going and then [he] brought it back down."
Padernal argues the evidence showed he did not have sufficient time to premeditate and deliberate killing the officers on the entrance ramp: "Exiting a parking structure at a high rate of speed, heading suddenly down a ramp, intending only to flee pursuing officers, how much deliberation or consideration could appellant have given the matter?" However, "`[t]he process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
Here, there was ample evidence Padernal had a sufficient amount of time to premeditate and deliberate. It appears he could not have been all that surprised to see the officers on the ramp. Although Padernal asserts his only intention was to flee from the pursuing officers, he must have been aware when he came down the ramp that his pursuers were now in front of him, not behind him. Moreover, the officers had sufficient time to realize they would be hit if they did not jump away, and they had sufficient time to make those jumps. This tended to show Padernal had sufficient time to decide he was going to run them over.
There was ample evidence here of two significant Anderson factors: motive and planning. Padernal had a powerful motive for trying to kill the officers on the ramp. He was an ex-felon in possession of firearms and he had just shot at Officers Fontes and Galan when they attempted to make a traffic stop. (See People v. Robillard (1960) 55 Cal.2d 88, 93-96, disapproved on other grounds by People v. Morse (1964) 60 Cal.2d 631, 648-649 [evidence defendant was on probation and had committed other recent offenses was relevant to show he shot officer with premeditation and deliberation]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1289 ["Evidence that Cummings was in possession of a handgun and had threatened to kill any policeman who got in his way went to his motive for shooting Officer Verna and thus to the elements of intent, premeditation and deliberation."].)
Padernals shooting at Fontes and Galan also tended to show he had a plan to avoid apprehension by killing any police officer who got in his way. This, in turn, tended to show that when he tried to run over the officers on the ramp he was acting with premeditation and deliberation. In People v. Salas (1972) 7 Cal.3d 812, the defendant had brandished a gun while robbing a bar and threatened to kill the victims if they got off the floor. While fleeing from this robbery, the defendant killed a deputy sheriff. Salas held the jury "could reasonably have inferred that defendant from the beginning planned to kill anyone interfering with the successful perpetration of the robbery and could reasonably conclude that defendant killed [the deputy] in accordance with that plan with the purpose of avoiding apprehension and a long prison term." (Id. at pp. 824-825.)
There was sufficient evidence to prove the attempted murders of Borrego, Estevez and Aguilar were premeditated and deliberated.
2. Sufficient evidence Aguilar aided and abetted the attempted murders in counts 3, 4 and 9.
Defendants contend there was insufficient evidence to prove Aguilar aided and abetted the attempted murders of Officers Borrego, Estevez and Aguilar (counts 3, 4 and 9). This claim is meritless.
Aguilars attempted murder convictions were based on an aiding and abetting theory. "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person `must share the specific intent of the [direct] perpetrator, that is to say, the person must `know[] the full extent of the [direct] perpetrators criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrators commission of the crime. [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrators intent to kill and with the purpose of facilitating the direct perpetrators accomplishment of the intended killing — which means that the person guilty of attempted murder as an aider and abettor must intend to kill." (People v. Lee (2003) 31 Cal.4th 613, 624.)
Aguilar, who undoubtedly had been the person sitting in the front passenger seat of the Toyota throughout these events, acknowledges Officer Aguilar testified he saw the front seat passenger trying to load a gun. Aguilar also acknowledges Boyd, the security guard, testified that as the Toyota entered the parking structure she saw the person in the front passenger seat appear to be fumbling with something in front of him. Nevertheless, Aguilar argues there was insufficient evidence he aided and abetted Padernals attempt to run over the officers on the ramp.
Aguilar testified, "I saw the front seat passenger kind of looking down. And there was — it appeared to be a shoulder weapon and kind of facing down towards the mat. And he was doing . . . a motion like he was trying to load it, like shotgun shells or any kind of big weapon."
Aguilar argues, "While it is possible that Padernal may have formed the intent to commit the crime in the split-second he emerged from the garage, it is quite another thing to speculate that appellant, looking down, saw the officers and also formed that intent." "It is further difficult to fathom how any of appellants acts prior to the Toyotas landing in the street assisted the previous attempted murders-by-vehicle on the ramp. Appellant was in no manner controlling the vehicle and Padernal required no assistance in that arena. The fact that appellant was `fiddling with a weapon on the floorboard in no way assisted Padernal in driving toward the officers."
We are not persuaded. Aguilars intent to aid and abet Padernals attempted murders on the ramp was demonstrated once Aguilar took possession of the gun and tried to load it after having seen Padernal try to kill Fontes and Galan. At that point, Aguilar willingly joined Padernals effort to escape by killing any police officer who got in his way. Aguilars intent to aid and abet was confirmed when, subsequent to the ramp incident, Aguilar himself began shooting at officers. (See In re Juan G. (2003) 112 Cal.App.4th 1, 5, italics added ["Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense."].) By taking that gun in his hand and trying to load it, Aguilar was actively encouraging and facilitating Padernals effort to commit a violent escape. Aguilar committed this act of aiding and abetting before Padernal tried to kill the officers on the ramp.
Finally, Aguilar argues that, even if the evidence showed he intended to aid and abet Padernals plan to commit a violent escape, what was missing was evidence that he intended to aid and abet Padernals attempt to kill these particular officers by running them over with the car. Not so. It is an accepted principle that evidence of a generic intent to kill can show a defendants intent to kill a victim whose subsequent appearance could have been anticipated. (See People v. Lang (1989) 49 Cal.3d 991, 1014 [evidence of defendants preexisting intent to kill anyone who interfered with his plans showed he had killed victim intentionally and not in self-defense]; People v. Rodriguez (1986) 42 Cal.3d 730, 757 [evidence defendant had declared he would kill any police officer who tried to arrest him was "admissible to show the defendants homicidal intent where other evidence brings the actual victim within the scope of the threat"]; People v. Ford (1964) 60 Cal.2d 772, 800, disapproved on other grounds by People v. Satchell (1971) 6 Cal.3d 28, 35-37 [defendants alleged generic threats were evidence his shooting of the victim had been "deliberate and premeditated because defendant had formed an intent to kill any police officer who might interfere with his plans"].)
The evidence showed Aguilar intended to assist Padernals effort to kill any police officers who tried to prevent the escape. When the three officers on the ramp suddenly presented a threat of arrest, they were certainly anticipated victims of the criminal effort Aguilar was aiding and abetting, even if Padernal himself only decided on the spur of the moment to run them over with his car.
There was sufficient evidence Aguilar aided and abetted the attempted murders of Borrego, Estevez and Aguilar.
3. Sufficient evidence Aguilar was the gunman as to counts 10, 11, 31 and 32.
Defendants contend there was insufficient evidence Aguilar was the gunman who committed attempted murder and assault on a peace officer with a semi-automatic firearm against Officers Camarillo and Barajas (counts 10, 11, 31 and 32). This claim is meritless.
The prosecution theory was that Aguilar, sitting in the front passenger seat, used the assault rifle to shoot at Camarillo and Barajas just as the Toyota turned from the entrance ramp onto Vermont Ave. Aguilar argues this theory was inherently improbable because Officer Aguilar had seen him "fiddling with a shotgun," while Boyd, the security guard, had seen Vasquez "leaning out the window pointing the rifle."
We are not persuaded. Boyd never testified she saw Vasquez with an assault rifle. In her police statement, she initially said Vasquez was holding "a shotgun, it was a long gun." She subsequently hedged a bit, saying: "I did see something black with a long barrel. I dont know if it was a shotgun or what." Although during Boyds subsequent trial testimony she agreed the gun looked like a rifle, the word "rifle" had been suggested by her questioner. Officer Aguilar testified he saw the front seat passenger holding what "appeared to be a shoulder weapon" and making "a motion like he was trying to load it, like shotgun shells or any kind of big weapon." (Italics added.) Asked what kind of weapon it appeared to be, Aguilar testified, "I would be leaning stronger to a shotgun." (Italics added.) These were not definitive characterizations.
"Q The object that you saw the back seat passenger have, could you describe — what did you think it was? [¶] A I thought it was a gun. [¶] Q A rifle type gun? [¶] A Yeah, because it had a long handle and like after he pulled it out I heard like a big old boom like you had blew up something."
On the other hand, Officer Barajas testified that at about the same time he was fired upon, he could see only two silhouettes inside the Toyota: the driver and the front seat passenger. In his interview with detectives just hours after the shooting, Barajas appeared to describe the two muzzle flashes he had seen as coming from the front passenger seat, where Aguilar was sitting. Moreover, there was overwhelming evidence that all the shooting during the subsequent chase on Wilshire had been done by Aguilar with the assault rifle.
"Q And what is it that you said to [the detectives]? [¶] A That I observed two muzzle flashes coming from the suspect vehicle from the center console from a compartment of the vehicle. [¶] Q Okay. In fact, didnt you give the following answer: I observed two muzzle flashes coming from the middle portion of the front side of the front passengers [sic] of the vehicle? [¶] A Yes. [¶] Q So you mentioned front passenger when you talked to the police back then? [¶] A Yes."
There was sufficient evidence Aguilar had been the gunman as to counts 10, 11, 31 and 32.
4. Trial court did not err by failing to instruct on accessory after the fact.
Defendants contend the trial court erred, in connection with counts 3, 4 and 9, by failing to instruct sua sponte on the distinction between accomplice liability and accessory after the fact liability. This claim is meritless.
Aguilar asserts the trial court had a sua sponte duty to instruct on accessory after the fact liability because the prosecution argued to the jury that Aguilar aided and abetted the attempted murders on the ramp by subsequently shooting at different officers.
Aguilar has conflated two different issues: evidence of acts he committed in order to aid and abet the attempted murders of Estevez, Borrego and Aguilar, and evidence of his state of mind when he committed those acts. The prosecutor did not tell the jury Aguilar shot at Camarillo and Barajas in order to aid and abet Padernals attempt to run over Estevez, Borrego and Aguilar. Rather, the prosecutor argued Aguilars shooting at Camarillo and Barajas was evidence of Aguilars intent when he first grabbed the gun and loaded it, i.e., that he meant to encourage and facilitate Padernals violent escape effort.
In connection with this claim, Aguilar asserts: "[T]he prosecutor did not merely point [to] appellants after-crime activities as evidence of previous aiding and abetting. The prosecutor pointed to those activities as the aiding and abetting activities themselves. The prosecutors plain words were: `That act of attempting to load the gun and later using guns to shoot at officers is [Aguilars] act of aiding and abetting Padernal in his criminal activities . . . ." (Italics added.) However, Aguilars ellipsis decontextualizes and distorts the prosecutors meaning. What the prosecutor actually said was: "That act of attempting to load the gun and later using guns to shoot at officers is his act of aiding and abetting Padernal in his criminal activities of attempted murder and assault with a deadly weapon and aiding and abetting in the crimes of Mr. Vasquez and then he becomes responsible for his own crimes. And those crimes would be as he shot at police officers coming out of the parking structure and all the way down the Wilshire corridor." (Italics added.)
The evidence showed Aguilar had become Padernals accomplice, at the latest, prior to Padernals attempt to run over the three officers on the ramp, when Aguilar took possession of the gun and began loading it. And this is just what the prosecutor argued to the jury: "Mr. Aguilar by taking that gun in his hand, by preparing to load the gun and by loading is actively encouraging and helping and facilitating Mr. Padernal in his criminal act of trying to kill a police officer. Hes an aider and abettor and that act began way before those officers [on the ramp] jumped out of the way."
There was no need to instruct on accessory after the fact.
5. Aiding and abetting instructions were proper.
Defendants contend the aiding and abetting instructions were defective because the trial court failed to correct the prosecutors misstatement of the required intent element. This claim is meritless.
a. Proceedings below.
The trial court instructed the jury on aiding and abetting with CALJIC No. 3.01, in pertinent part, as follows: "A person aids and abets the commission or attempted commission of a crime when he or she: [¶] 1. With knowledge of the unlawful purpose of the perpetrator, and [¶] 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] 3. By act or advice aids, promotes, encourages or instigates the commission of the crime."
During closing argument, the prosecutor initially said: "Did [Aguilar] have the intent to aid and abet? What does that mean? Well, when he did his act, was he trying to help out Padernal? Did he become . . . part of the plan to help Padernal get away? [¶] He doesnt have to have the intent that Padernal has. Padernal has to have the intent to kill. Driving out [of the garage] Aguilar doesnt have to [have] the intent to kill, he just has to have the intent to help Padernal in his escape. . . . ""Remember [Aguilar] doesnt have to intend to do the crime that Mr. Padernal intends to do, that is kill somebody. He just has to intend to help out."
But during Aguilars closing argument, defense counsel said: "The law is that for somebody to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the . . . perpetrators intent to kill and with the purpose of facilitating the direct perpetrators accomplishment[] of the intended killing which means the person guilty of attempted murder as an aider and abettor must intend to kill." When the prosecutor objected that this was a misstatement of the law, the trial court overruled the prosecutors objection. Then, outside the jurys presence, the prosecutor argued defense counsel had misstated the law when she said Aguilar had to share the same intent to kill as Padernal. The trial court ruled defense counsel had not misstated the law.
During her rebuttal argument, the prosecutor told the jury: "And let me read really quickly to you this aiding and abetting instruction which talks about the state of mind that Mr. Aguilar had to have in this case as it relates to the [officers] in the driveway. [¶] Aiding and abetting the perpetrator of a specific intent crime requires that the aider and abettor share the specific intent of the perpetrator. Okay. That means he has to know what is going on in the perpetrators mind. [¶] However, an aider and abettor will share the perpetrators specific intent when he or she knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with [sic] the perpetrator of the crime. That means Mr. Aguilars state of mind has to be I know Padernal wants to kill somebody. I am helping him with that knowledge. Therefore I am an aider and abettor in that crime and I share his specific intent in that particular crime and that is what happened."
b. Discussion.
Aguilar concedes CALJIC No. 3.01, as given by the trial court, correctly stated the intent requirement for aiding and abetting, but he argues the instruction was subverted by the prosecutors jury argument. Pointing to the prosecutors statement that "an aider and abettor will share the perpetrators specific intent when he or she knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the perpetrator of the crime" (italics added), Aguilar complains this language was "almost identical to former CALJIC No. 3.01, which was disapproved" by People v. Beeman (1984) 35 Cal.3d 547, and that the prosecutor falsely told jurors this language came from a jury instruction.
Beeman disapproved of former CALJIC No. 3.01 because it contained a knowledge element, but no intent element: "[T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]" (People v. Beeman, supra, 35 Cal.3d at p. 560.) The language of former CALJIC No. 3.01 had said "that a person `aids and abets the commission of a crime if, in the knowledge of the unlawful purpose of the perpetrator of crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime. " (People v. Daniels (1991) 52 Cal.3d 815, 871.)
We do not believe the prosecutor tried to undermine CALJIC No. 3.01, or that the jury could have concluded aiding and abetting did not have an intent element. It is apparent from the record that, although the prosecutor was not quoting the language of CALJIC No. 3.01, she was reading from the Use Note to that instruction. That Use Note states, in pertinent part: "Aiding and abetting the perpetrator of a specific intent crime requires that the aider and abettor share the specific intent of the perpetrator. However, `an aider and abettor will "share" the perpetrators specific intent when he or she knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. [Citation.]"
What appears to have happened is that the prosecutor misread the Use Note by saying, "an aider and abettor will share the perpetrators specific intent when he or she knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the perpetrator of the crime" (italics added), instead of saying "and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime." None of the defendants objected when this misreading occurred.
Aguilar concedes the trial court gave the Beeman-approved version of CALJIC No. 3.01, which included both knowledge and intent elements. The trial court had no sua sponte duty to clarify or amplify a correct jury instruction. (See People v. Valdez (2004) 32 Cal.4th 73, 113 ["Defendant did not request the clarifying language he now contends was crucial and may not now `complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete. [Citations.] Defendants failure to either object to the proposed instruction or request that the omitted language be given to the jury forfeits his claim on appeal."].)
When the prosecutor objected to defense counsels telling the jury a "person guilty of attempted murder as an aider and abettor must intend to kill," the trial court overruled the prosecutors objection, signaling to the jury that defense counsels statement was correct. Then, during her rebuttal argument, the prosecutor echoed defense counsels statement by telling the jury that "[a]iding and abetting the perpetrator of a specific intent crime requires that the aider and abettor share the specific intent of the perpetrator." And right after mangling the Use Note language, the prosecutor said: "That means Mr. Aguilars state of mind has to be I know Padernal wants to kill somebody. I am helping him with that knowledge. Therefore I am an aider and abettor in that crime and I share his specific intent in that particular crime and that is what happened." (Italics added.)
Moreover, the prosecutor was not wrong when she told the jury Aguilar "doesnt have to have the intent that Padernal has" and "doesnt have to intend to do the crime that Mr. Padernal intends to do, that is kill somebody. He just has to intend to help out." The aider and abettors intent is not entirely coterminous with the perpetrators intent because the aider and abettors intent to kill need not exist entirely independently. Beeman recognized this when it said "the aider and abettor must share the specific intent of the perpetrator," but then immediately qualified that statement by adding: "By `share we mean neither that the aider and abettor must be prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor must seek to share the fruits of the crime. [Citation.] Rather, an aider and abettor will `share the perpetrators specific intent when he or she knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime." (People v. Beeman, supra, 35 Cal.3d at p. 560; see also People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123 ["mental state necessary for conviction as an aider and abettor . . . is different from the mental state necessary for conviction as the actual perpetrator"].)
The jury was adequately instructed on aiding and abetting liability.
6. Kill zone instruction properly given.
Defendants contend that, in connection with counts 16, 17, 20 and 21 (involving the shots fired at Officers Mendez, Chavez, Heredia and Ornelas during the Wilshire chase), the trial court erred by giving a "kill zone" instruction (CALJIC No. 8.66.1), and that the prosecutor compounded this error by misstating the relevant law during closing argument. This claim is meritless.
a. Legal principles.
The trial court instructed the jury with CALJIC No. 8.66.1 as follows: "A person who primarily intends to kill one person may also concurrently intend to kill other person[s] within a particular zone of risk. This zone of risk is termed the kill zone. The intent is concurrent when the nature and scope of the attack, while directed [at] a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a kill zone of risk is an issue to be decided by you."
As our Supreme Court explained in People v. Bland (2002) 28 Cal.4th 313, 330: "California cases that have affirmed convictions requiring the intent to kill persons other than the primary target can be considered `kill zone cases even though they do not employ that term. In People v. Vang (2001) 87 Cal.App.4th 554, 563-565 . . ., the defendants shot at two occupied houses. The Court of Appeal affirmed attempted murder charges as to everyone in both houses — 11 counts — even though the defendants may have targeted only one person at each house. `The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harms way, but fortuitously were not killed. (Id. at pp. 563-564; see also People v. Gaither (1959) 173 Cal.App.2d 662, 666-667 . . . [defendant mailed poisoned candy to his wife; convictions for administering poison with intent to kill affirmed as to others who lived at the residence even if not the primary target].)"
"The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them." (People v. Bland, supra, 28 Cal.4th at p 329.) Concurrent intent exists "`when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure As death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. " (Id. at pp. 329-330.)
b. Discussion.
Aguilar argues there was insufficient evidence to warrant a kill zone instruction: "While there was ample evidence . . . of weapons fire directed at officers in vehicles, there is a singular lack of evidence that any of the officers was a primary target of the fire." Not so. Chavez and Mendez, who were in the primary pursuit unit, were sometimes just a few car lengths behind the Toyota. They were the primary threat to stop the Toyota, and they were the primary victims of Aguilars shooting spree.
Aguilar cites People v. Stone (2008) 160 Cal.App.4th 937, which he argues "held that it was an incorrect statement of the law . . . to say that as long as a defendant intended to kill someone when he indiscriminately shot into a kill zone, then he can be convicted of the attempted murder of anyone who occupied that zone. Under the instructions given [to Aguilars jury] coupled with the argument of the prosecution, that was the erroneous theory which was allowed in the instant case." Not so. In Stone a different jury instruction had been given which, combined with the prosecutors jury argument, allowed for conviction even if the jury found the defendant had intended to kill only one of a group of gang members who were standing together. Hence, Stones kill zone theory did not have a concurrent intent element because it encompassed a defendant who had been trying to shoot no more than a single victim. Here, on the other hand, the jury was specifically instructed it had to find "the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity." (Italics added.)
Aguilar argues there was insufficient evidence he had the concurrent intent to kill the officers in the secondary pursuit unit: "There is no evidence to support an instruction which would allow the secondary chase vehicle, which was one hundred to three hundred yards back, to come with[in] a `kill zone since there is no substantial evidence that there was a concurrent intent to kill the officers in that vehicle." We disagree.
Although Ornelas and Heredia in the secondary pursuit unit were sometimes hundreds of yards behind the Toyota, they too were being fired upon and there was evidence Aguilars assault rifle could hit a target up to 600 yards away. As Bland explained: "`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." (People v. Bland, supra, 28 Cal.4th at p. 330.) Clearly, Ornelas and Heredia were within the zone of harm Aguilar created when he attempted to kill Chavez and Mendez.
7. Sufficient evidence of Vasquezs guilt for Wilshire chase crimes.
Defendants contend there was insufficient evidence to sustain Vasquezs convictions on counts 16, 17, 20 and 21 (attempted murder of Officers Mendez, Chavez, Heredia and Ornelas) and on counts 33-36 (assault with a semiautomatic firearm on those same officers). This claim is meritless.
a. Legal principles.
These convictions arose out of the shootings that occurred during the chase on Wilshire. The prosecution theorized Vasquez was guilty as an aider and abettor under the natural and probable consequences doctrine.
"[A]n aider and abettors liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also `for any other offense that was a "natural and probable consequence" of the crime aided and abetted. [Citation.] Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) "[A]lthough variations in phrasing are found in decisions addressing the doctrine — `probable and natural, `natural and reasonable, and `reasonably foreseeable — the ultimate factual question is one of foreseeability. [Citations.] `A natural and probable consequence is a foreseeable consequence [citations]; the concepts are equivalent in both legal and common usage." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.)
In determining whether the additional crime is a natural and probable consequence of the first crime, the "question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." (People v. Mendoza, supra, 18 Cal.4th at p. 1133.) "[T]he issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531; see, e.g., People v. Montes (1999) 74 Cal.App.4th 1050, 1054-1057 [simple assault and breach of peace properly included as predicate offenses where, in context of gang rivalry, these offenses were not trivial and were closely connected to homicide]; People v. Lucas (1997) 55 Cal.App.4th 721, 732-735 [brandishing was proper predicate crime for murder based on natural and probable consequences doctrine]; People v. Montano (1979) 96 Cal.App.3d 221, 225-227 [attempted murder was natural and probable consequence of participation in plan to beat up rival gang members]; People v. Cayer (1951) 102 Cal.App.2d 643, 651 [murder was natural and probable consequence of preventing bystanders from intervening while defendants companion savagely beat victim].)
b. Discussion.
Vasquez argues the natural and probable consequences doctrine did not apply because the required nexus between the predicate and ultimate crimes was missing: "[T]he target crimes were the assaults and attempted murders of the officers in the parking garage. Vasquez became an aider and abettor to those crimes when he pointed a firearm at the officers, assuming that is true for purposes of this argument. As a pure matter of cause and effect, however, the assaults and attempts to murder the officers pursuing the Toyota along Wilshire Boulevard were not the natural and probable consequence of the events in the garage. That is, there is nothing causally linking the two series of events such that one was a consequence or a result of the other. . . . [The] attempted murder of the officers in the garage in no way caused or attributed to the attempted murders and assaults of the Wilshire Blvd. chase officers. The two sets of events occurred at completely different moments in time and at different locations." (Italics added.) Vasquez asserts that, while "Aguilars act of shooting at the officers during the chase along Wilshire may have been foreseeable," "it was not a consequence of the target crime Vasquez allegedly aided and abetted, i.e., the attempted murders in the garage."
We disagree. The chase on Wilshire followed immediately and directly from the attempted murders on the parking structure entrance ramp that Vasquez aided and abetted. Had those crimes not occurred, the defendants would have been arrested at that point and none of the subsequent crimes would have been committed. By aiding and abetting the attempted murder of the three officers on the ramp, Vasquez joined an ongoing criminal enterprise that was almost guaranteed to result in a subsequent armed clash with police. The nexus between the two events was so direct that two of the officers who witnessed the assaults on the ramp, Mendez and Chavez, became the primary pursuit unit during the Wilshire chase. The two events flowed together without a break in the action.
There was sufficient evidence to sustain Vasquezs convictions under the natural and probable consequences doctrine.
8. There were no improper inconsistent verdicts.
Defendants contend that, even if there were sufficient evidence to sustain Vasquezs convictions on counts 16, 17, 20, 21 and 33-36, those convictions must be reversed because they were inconsistent with other verdicts. This claim is meritless.
In counts 28, 29 and 30, Vasquez was charged with assaulting Officers Aguilar, Borrego and Estevez with a firearm, based on Boyds testimony that, as the Toyota drove into the parking structure, she saw the right rear passenger hanging out the window and pointing a gun in the direction of the officers on the ramp. The jury acquitted Vasquez on counts 28-30, but convicted him on counts 16, 17, 20, 21 and 33-36 (attempted murder/assault with a semiautomatic firearm as to Officers Mendez, Chavez, Heredia and Ornelas during the chase on Wilshire). Vasquez argues his acquittal on the former counts was fatally inconsistent with his conviction on the latter counts.
"Prior to 1927, appellate courts of this state . . . held that inconsistent verdicts `would not support a judgment of conviction. [Citations.] In apparent response to these decisions, the Legislature amended section 954 in 1927, adding the last sentence of the section, which now provides: `An acquittal of one or more counts shall not be deemed an acquittal of any other count. [Citations.] . . . [¶] Since 1927 our courts have followed the general rule and viewed an inconsistent acquittal as the product of confusion or an act of mercy on the part of the jury, of which an appellant is not permitted to take further advantage. . . ." (People v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657; see People v. Santamaria (1994) 8 Cal.4th 903, 911 ["It is . . . settled that an inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both."].)
However, there does exist "a limited judicial exception to this rule which is applicable in conspiracy cases, and [which] was established by our Supreme Court in In re Johnston (1935) 3 Cal.2d 32, 34-36 . . . ." (People v. Pahl, supra, 226 Cal.App.3d at p. 1657.) Vasquez argues he falls within the Johnston exception. He does not. "The conspiracy exception is limited, applying only where, as in Johnston, an overt act alleged in a conspiracy charge is identical to another charged offense of which defendant is acquitted. The Supreme Court decreed that under those unique circumstances, section 954 should not be construed to support a judgment of conviction for conspiracy, because the defendant has been acquitted of every charged overt act. [Citation.]" (Id. at p. 1658.) Vasquez is not contesting a conspiracy conviction.
Moreover, there does not appear to be a necessary inconsistency between the two sets of verdicts. The jury could have found Vasquez did not assault Officers Borrego, Estevez, and Aguilar with a firearm, but that he did brandish or otherwise possess a firearm while he was in the parking structure. When the trial court denied Vasquezs motion for a new trial based on his claim of inconsistent verdicts, it pointed out the jury could have believed that, although Vasquez was not guilty of assault with a firearm, the evidence showed he did have a gun in his hands and that was sufficient to find him guilty of aiding and abetting.
9. Specific intent element of natural and probable consequences doctrine properly given.
Vasquez contends the trial court erred by not requiring the jury to find he specifically intended to kill each of the officers named in counts 16, 17, 20 and 21 (Officers Mendez, Chavez, Heredia and Ornelas). This claim is meritless.
The jury was instructed with CALJIC No. 8.66, in pertinent part, as follows: "In order to prove attempted murder, each of the following elements must be proved: [¶] 1. A direct but ineffectual act was done by one person towards killing another human being. And [¶] 2. The person committing the act harbored express malice aforethought, namely a specific intent to kill unlawfully another human being." (Italics added.)
Vasquez claims this instruction was erroneous because the italicized portions did not require the jury to find that Aguilar, who fired the shots, specifically intended to kill each one of the four officers. But this ignores the trial courts introductory statement that the defendants had been accused in various counts of attempted murder, and that "[e]very person who attempts to murder another human being is guilty of" attempted murder. Any reasonable juror would have understood that the attempted murder definition applied to each count, i.e., to each alleged victim. There is simply no warrant for Vasquezs assertion "the instruction . . . suggested that if he intended to kill any one of them, he (and his co-defendants) would be liable as to all."
10. There was no cumulative error.
Defendants contend that, even if harmless individually, the cumulative effect of their claimed trial errors mandates reversal of their convictions. Because we have found no errors, this claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
11. Padernal properly sentenced to consecutive terms.
Padernal contends that, because the trial court failed to give any indication whether the sentences on counts 10, 24 and 25 were to be concurrent or consecutive terms, they must be deemed to run concurrently under the default rule of section 669. This claim is meritless.
Section 669 provides, in pertinent part: "When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." (Italics added.)
Padernal concedes the trial court stated it was sentencing him to a total term of 226 years to life, plus two years, a sentence that could only have been reached if the court intended to impose consecutive terms on the disputed counts. However, he argues the trial courts failure to expressly pronounce that these three counts were to be consecutive requires application of section 669s default rule. But the case law on which Padernal relies does not support his argument. (See People v. Downey (2000) 82 Cal.App.4th 899, 914, italics added [not only did trial court fail to state how two misdemeanor terms were to run with respect to each other, but "there is no indication that, when the trial court imposed judgment . . . it intended that the misdemeanor counts be deemed to have been served consecutively"]; In re Patton (1964) 225 Cal.App.2d 83, 88 [section 669 default rule applicable because Adult Authority could not "determine whether a second sentence shall be consecutive or concurrent" as that is "a judicial function"]; Ex parte Taube (1947) 78 Cal.App.2d 142, 143-144 [section 669 default rule applicable where only indication that consecutive sentencing was intended consisted of rubber stamp on commitment certificate].)
We agree with the Attorney General that the trial court "indicated its intent to sentence Padernal consecutively on counts 10 and 24. The court imposed an aggregate indeterminate term of 226 years to life, and Padernals sentences on counts 1 through 4, 9, 10, 11, 16, 17, 20, 21, and 24 add up to 226 years. As Padernal concedes, it is `evident from the courts calculation of the total indeterminate sentence time imposed . . . that the court desired to run the sentence on count [10 and] 24 consecutively. . . . In contrast, when the court intended that a sentence run concurrently, as it did with count 27, and with counts 31 through 36 . . . the court expressly so stated."
The sentence on count 25 necessarily ran consecutively because it was the only determinate term imposed, and had to be calculated independently from the indeterminate terms. (See People v. Reyes (1989) 212 Cal.App.3d 852, 858 ["[W]hen one term is determinate and the other is indeterminate, neither is principal or subordinate; instead, each is calculated without reference to the other."]; People v. Day (1981) 117 Cal.App.3d 932, 936-937 [defendant properly given full aggravated five-year term for robbery consecutive to 25-years-to-life term for murder because determinate and indeterminate sentences are treated independently].)
The default rule of section 669 does not apply to counts 10, 24 or 25.
12. Padernal not entitled to presentence conduct credit.
The Attorney General contends the trial court improperly awarded Padernal presentence conduct credit. This claim has merit.
The trial court awarded Padernal 185 days of presentence conduct credit. However, under section 2933.2, this was improper because Padernal had been convicted of murder. (See People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432 [section 2933.2 "prohibits an award of presentence conduct credits" to anyone convicted of murder, and "applies to the offender not to the offense and so limits a murderers conduct credits irrespective of whether or not all his or her offenses were murder"]; People v. McNamee (2002) 96 Cal.App.4th 66, 74 ["section 2933.2, subdivision (c), should be interpreted to bar presentence conduct credits against determinate as well as indeterminate terms of a murderers sentence"].)
We will modify the judgment and order amendment of the abstract of judgment accordingly.
DISPOSITION
Defendant Padernals sentence is modified to delete the award of 185 days of presentence conduct credit, and as modified his judgment is affirmed. The trial court shall issue an abstract of judgment so amended. The judgments as to defendants Aguilar and Vasquez are affirmed.
We concur:
CROSKEY, J.
ALDRICH, J.