Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS031841
ELIA, J.A jury found appellant guilty of second degree murder and found true an enhancement for shooting a firearm from a motor vehicle. (Pen. Code, §§ 187, 190, subd. (d).) The jury did not make findings as to the truth of two personal gun use enhancements. (Pen. Code, §§ 12022.5, 12022.53.) The trial court sentenced appellant to a state prison term of 20 years to life. Spillman appealed, contending that the trial court erred in instructing the jury on second degree felony-murder, in instructing on aiding and abetting, in refusing a defense request concerning instructions, and in excluding certain gang evidence. This court affirmed. The Supreme Court granted appellant's petition for review and deferred action pending disposition of People v. Chun (2009) 45 Cal.4th 1172. On June 12, 2009, the Court transferred this case to us with directions to vacate our decision and to reconsider the cause in light of Chun. We have received supplemental letter briefs from the parties addressing Chun's applicability to this case. We affirm.
Evidence at Trial
In May 2003, Javier Soto was shot and killed as he drove on Highway 101 near White Road in Salinas. Soto was alone in a grey Honda and was headed north when three shots were fired from a pickup truck going in the same direction. Rubi Garcia was driving the pickup truck which belonged to appellant. Appellant was seated next to Rubi and Antonio Garcia was next to appellant. Because appellant had been drinking, he let Rubi drive the truck. Antonio had been drinking beer and had smoked marijuana. He was "kind of buzzed."
Because Rubi Garcia and Antonio Garcia have the same last name, we will refer to them by their first names.
Antonio testified at trial that at the time of the shooting he had known Rubi for three or four years and considered Rubi a close friend "like a cousin." Appellant was "just an acquaintance." Antonio testified that the three traveled along Highway 101 and noticed a car in front of them. When Rubi would change lanes to pass it, the car would also change lanes. Antonio said that the other car, "would mess with us." Antonio testified that appellant said something like "look at this guy." He said that appellant got a gun from the glove compartment in front of Antonio. Antonio testified that appellant pushed Rubi forward up to the steering wheel and, as Rubi passed the car, appellant fired the gun out of the driver's side window. Before the shooting, the three had been laughing. After the shooting, he and Rubi were quiet and scared. Antonio testified, "I thought he was going to shoot my ass too." When the police pulled them over, appellant told Rubi and Antonio, "Shut up. Don't say [any]thing." Antonio testified that he did not touch the gun that day and that he did not know if Rubi did.
Francis and Shirley Jarschke testified at trial that they had witnessed the shooting. Francis Jarschke said that he was driving on Highway 101 when he saw in his rear view mirror that there was a pickup truck tailgating a Honda. After Mr. Jarschke passed a semi-truck, the Honda and the pickup passed him on the right. When the Honda moved to the left turn lane, the pickup moved to the fast lane and matched speed with it. The pickup "moved over close" to the Honda so that it was within two feet of it. Mr. Jarschke testified that he saw an arm and a pistol extend out of the pickup truck's driver's side window. He said that it would have been "hard for the driver to do it." To Mr. Jarschke, the arm and hand looked like that of a Caucasian male but he could not tell whether it was a left or right arm. The pistol fired three times. The Honda continued a short distance and stopped. Mr. Jarschke told his wife to call 911.
Shirley Jarschke testified that it looked as if the pickup was pursuing the Honda. The driver of the pickup was a female with long dark hair. The driver looked "very excited" like she was "just out joyriding." Mrs. Jarschke saw "the pickup getting beside the Honda and veering over." Mrs. Jarschke saw an arm holding a gun come out of the driver's side of the pickup truck. She acknowledged that she told the 911 dispatcher that the shooter was the driver.
Brent Wooldridge testified that he was northbound on Highway 101 when he saw in his mirrors a car and a pickup that seemed to be chasing one another. Wooldridge moved over to the slow lane to let them pass. Wooldridge testified that the truck moved to the side of the car and appeared to drop back to match speeds. Wooldridge then saw an arm coming out of the driver's side window with a gun in the hand. The arm protruded out the window fully extended for "quite a while" by which Woodridge meant "enough time to where he's either trying to scare the person or trying to take aim." Wooldridge said that the arm was "definitely" that of a male and "it was a Caucasian arm, tanned skin, blond hair." Wooldridge followed the truck as it left the freeway at San Miguel Canyon Road and he called 911. He saw the police remove three people from the truck. When he saw the Caucasian man, he thought, "that was the arm I saw" although he did not mention that to the police officer who spoke to him at the time.
Wooldridge said that the officer did not specifically ask him who the shooter was but that Wooldridge believed that it was "apparent" or "obvious" because the officer said, "Yeah, his name was engraved on the gun."
An off-duty San Jose police officer who was driving on Highway 101 testified that he saw the pickup truck driving recklessly. It was tailgating other vehicles in the fast lane, apparently to get them to changes lanes. Near San Miguel Canyon Road, the officer honked at the pickup. The officer testified that the driver, a female, "turned towards me and she extended her middle finger of her hand, flipping me off. And seemed to kind of laugh.... She then appeared to turn towards the other occupants of the vehicle and appeared to be in discussion... with them."
California Highway Patrol Officer Drake Wilburn assisted in the stop of the truck. About 10 seconds before the truck stopped, Officer Wilburn saw the middle seat passenger reach down and to his left. Officer Wilburn was wearing sunglasses and looking through the tinted back window of the truck from a distance of about 15 feet. When the truck stopped, the officers found Antonio in the right seat of the front bench seat. Appellant was in the middle and Rubi was in the driver's seat.
After removing the occupants from the truck, another officer found a nine-millimeter Smith and Wesson semi-automatic handgun in a nylon holster under and to the right side of the driver's seat. The holster strap was snapped over the gun and the gun would have been accessible to the middle passenger. A photograph introduced into evidence showed the location of the holster and gun in the truck when the police discovered it.
Appellant was the registered owner of the truck. In the pocket on the lower part of the door on the driver's side, the police found a hunting license with appellant's name on it, a gun magazine loaded with eight bullets and another loaded with 14. Inside the pocket on the passenger's side door was a receipt from Radio Shack with Rubi's name on it. On the passenger's side of the transmission hump was a leather pouch with the name "Garcia" on it containing a box cutter and a pen.
The Honda had bullet strikes in the rear passenger window and front passenger door frame. The front and rear passenger side windows were shattered. Soto had been killed by a shot that entered his body below the top of his right shoulder, passed through his chest and lodged under the back of his left armpit. Three shell casings were found by Highway 101 and two slugs in the Honda doors. Two of the casings were found to have come from the gun that shot Soto. An expert witness who performed a trajectory analysis testified that the sequence of the shots was not certain, but that it was likely to have been that the first shot was from the rear of the Honda, the shot from the side was second, and the shot ahead of the Honda was last. Tests for gunshot residue found none on appellant or Antonio. Some was found on Rubi's left palm, the tops and palms of Soto's hands, and the passenger side of the pickup truck.
A psychologist testified about eyewitness identification. He said that when one is asked a question, one may engage in a "reconstructive process" and that "there may be things that we didn't really see, but we just sort of add them in because it's plausible." He described studies that found that stress reduced the accuracy of one's memory. He also testified about the "weapon focus effect" in which a witness can describe a gun "pretty well" but cannot describe the person holding it.
Appellant was questioned by the police and a videotape of this was shown at trial. The detective noted that appellant had a strong odor of alcohol about him. Appellant told the detective that he had "no idea" why he was being questioned. He said that he picked Rubi up at her mother's house and then picked up Antonio, who lives across the street from Rubi's mother. Rubi was driving because appellant had been drinking. Appellant told the detective that they had not had any problems with anyone on the road. Appellant said that he had the loaded gun in his car because he "just got back from the Sierras with my boys." Appellant told the detective that there might be gunshot residue in his truck from his hunting trip, but he said that there would not be any gunshot residue on his hands and asked the detective why his hands were "the only ones bagged." When asked why witnesses would have pointed out his truck as the one from which the shots were fired, appellant said, "There's a thousand maroon vehicles goin' down the road." Appellant repeatedly told the detective that no one shot out of his truck and that "I didn't shoot no gun."
Second Degree Felony-Murder Instruction
The trial court instructed the jury that it could convict appellant of second degree murder if it found that appellant had killed Soto by committing a felony inherently dangerous to human life. The trial court instructed the jury that a violation of Penal Code section 246, discharging a firearm at an occupied motor vehicle, is a felony inherently dangerous to human life. When appellant's case was first before this court, he contended, "The trial court erred prejudicially in instructing on second-degree felony-murder predicated on violation of section 246." In our first opinion, this court discussed a number of cases on the subject, including People v. Hansen (1994) 9 Cal.4th 300, People v. Robertson (2004) 34 Cal.4th 156, and People v. Randle (2005) 35 Cal.4th 987. We said, "Although appellant makes a well-reasoned, thorough, and thoughtful argument, California Supreme Court precedent compels us to reject it." The Supreme Court granted appellant's petition for review and deferred action pending disposition of People v. Chun (2009) 45 Cal.4th 1172. Chun overruled Hansen, Robertson and Randle. On June 12, 2009, the Court transferred this case to us with directions to vacate our decision and to reconsider the cause in light of Chun. We have received supplemental briefs from the parties addressing Chun's applicability to this case.
In Chun, the California Supreme Court undertook a historical review of the second degree felony murder doctrine and the merger doctrine. The court concluded, "In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive." (Chun, supra, 45 Cal.4th 1172, 1200 .) The court specifically said, "When the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction." (Ibid.) Thus, the trial court erred in instructing on felony murder based on a violation of section 246.
Prejudice
Although in Chun our Supreme Court held that the trial court erred in instructing on felony murder based on a violation of section 246, the Court found this error harmless beyond a reasonable doubt. Appellant notes several instructional and evidentiary dissimilarities between Chun and his case which, he argues, lead to the conclusion that the error here was prejudicial.
In Chun, three persons were in a car sometimes driven by a member of the "Asian Boys" street gang. (Chun, supra, 45 Cal.4th at p. 1178.) While that car was stopped at a traffic light, a car driven by a member of the rival "Tiny Rascals Gangsters" pulled alongside. (Id. at p. 1179.) Shots were fired from at least three guns from the Tiny Rascals car into the Asian Boys car, killing the driver. Defendant Chun later admitted firing one of the guns from the backseat but said that he had only intended to scare the other car's occupants. Chun, 16-years-old but tried as an adult, was charged with murder, with drive-by and gang special circumstances, and with two counts of attempted murder, discharging a firearm from a vehicle, and shooting into an occupied vehicle, all with gang and firearm-use allegations, and with street terrorism. At trial, he denied being a gang member or being involved in the shooting.
The prosecution argued that Chun's offense was first degree murder. The trial court also instructed the jury on second degree felony murder based on shooting at an occupied motor vehicle either directly or as an aider and abettor. The jury found Chun guilty of second degree murder. However, it found the personal-firearm-use allegation not true. It did find that a principal intentionally used a firearm and the shooting was committed for the benefit of a criminal street. The jury acquitted Chun of both counts of attempted murder, shooting from a motor vehicle, and shooting at an occupied motor vehicle. It convicted Chun of being an active participant in a criminal street gang.
As discussed above, our Supreme Court held that the trial court erred in instructing on felony murder based on a violation of section 246. The court approved the use of the test for prejudice articulated by Justice Scalia in his concurring opinion in California v. Roy (1996) 519 U.S. 2, 7. The Court said, "The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well." (Chun, supra, 45 Cal.4th at p. 1204.) Using this test, the Court found that the error in instructing the jury on felony-murder was harmless beyond a reasonable doubt. The Court said that "any juror who relied on the felony-murder rule necessarily found that defendant willfully shot at an occupied vehicle. The undisputed evidence showed that the vehicle shot at was occupied by not one but three persons. The three were hit by multiple gunshots fired at close range from three different firearms. No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life--which is a valid theory of malice. In other words, on this evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice." (Chun, supra, 45 Cal.4th at p. 1205.)
In this case, the jury was instructed that a violation of Penal Code section 246 has two elements, "One, a person unlawfully discharged a firearm at an occupied motor vehicle. And two, the discharge of the firearm was willful and malicious." The jury was instructed on the definition of murder, including that a killing was murder if done with malice or through a felony inherently dangerous to human life, which included a violation of Penal Code section 246. The jury was instructed pursuant to CALJIC 8.11 as to express and implied malice. The jury was instructed on first degree murder based on premeditation and deliberation, as well as first degree murder based on discharge of a firearm from a motor vehicle. This jury, unlike the jury in Chun, was also instructed with CALJIC 8.30 on unpremeditated murder of the second degree and with CALJIC 8.31, killing resulting from an unlawful act dangerous to life.
"Defendant is accused in count 1 of having committed the crime of murder, a violation of 187 of the Penal Code. Every person who unlawfully kills a human being with malice aforethought or [sic] a felony inherently dangerous to human life is guilty of the crime of murder in violation of Penal Code Section 187. A killing is unlawful if it was neither justifiable or excusable. In order to prove this crime, each of the following elements must be proved: One, a human being was killed. Two, the killing was unlawful. And three, the killing was done with malice aforethought or [sic] a felony inherently dangerous to human life. [¶] Penal Code Section 246, previously defined, which is discharging a firearm at an occupied motor vehicle, is a felony inherently dangerous to human life."
The jury was instructed, " 'Malice' may be either express or implied. Malice is expressed when there is manifested an intention unlawfully to kill a human being. Malice is implied when the killing resulted from an intentional act, the natural consequences of the act are dangerous to human life; and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word 'aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."
The jury was instructed, "Murder of the second degree is also the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being, but the evidence is insufficient to prove deliberation or premeditation. [¶] Murder of the second degree is also the unlawful killing of a human being when: One, the killing resulted from an intentional act. Two, the natural consequences of the act are dangerous to human life. And three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. When the killing is the direct result of such an [intentional] act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being."
The jury was instructed as to the Penal Code section 190, subdivision (d) allegation, "It is also alleged in a special allegation that applies to second degree murder that the defendant perpetrated a murder by means of shooting a firearm from a motor vehicle intentionally at another person outside of the vehicle with the intent to inflict great bodily injury. If you find the defendant guilty of second degree murder, you must determine whether: One, the murder was perpetrated by means of shooting a firearm from a motor vehicle. Two, the perpetrator intentionally shot the firearm at another person or persons outside the vehicle. And three, the perpetrator shot the firearm specifically intending to inflict great bodily injury."
The jury was further instructed on an aiding and abetting theory as to brandishing a firearm. The jury was told that it could find appellant guilty of murder if it found, "One, the crime or crimes of Penal Code Section 417.3, drawing or exhibiting a firearm in the presence of a motor vehicle, was committed. Two, that the defendant aided and abetted that crime. Three, that a co-principal in that crime committed the crime of Penal Code Section 417.3. And four, the crimes of murder, Penal Code Section 187, was a natural and probable consequence of the commission of the crime of Penal Code section 417.3, drawing or exhibiting a firearm in the presence of a motor vehicle." The jury was also told that the jurors need not agree on which theory of second degree murder in order to convict of second degree murder.
"You've also been instructed on two theories of murder in the second degree. Unpremeditated murder. And second – secondly, murder committed when killing resulted in an unlawful act dangerous to life. It is not necessary that all 12 jurors agree which theory of murder in the second degree was committed. In order to convict the defendant of murder in the second degree, all 12 jurors must agree beyond a reasonable doubt that one of the two theories of the murder in the second degree occurred. But you need not agree unanimously on which of the two theories occurred."
In closing argument, the prosecutor asked the jury to find appellant guilty of first degree murder and to find that appellant "intentionally and personally discharged a firearm from that pickup truck." She said that the evidence "will speak to the elements of premeditation, specific intent to kill, and the identification of the shooter as a principal in this case, being Glenn Spillman." The prosecutor reviewed the theories under which appellant could be found guilty of first degree murder and second degree murder. The prosecutor said that one theory was "the drawing and exhibiting of a firearm in the presence of an occupant of a motor vehicle. If you find that that particular conduct would lead as a natural and probable consequence to murder, you can find that an aider and abettor, under the guise of principal who assisted with a particular state of mind, that they were aiding and abetting the crime of drawing and exhibiting a firearm, and only that, then that aider and abettor can be found liable for murder." Defense counsel told the jury, "If you think that Rubi Garcia may be the shooter, you have to vote not guilty." He said that the jury "never heard anything except speculation about how it is possible that my client might have aided and abetted in any way."
Under Chun, the error in this case in instructing with second degree felony murder can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well. If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for second degree murder, the erroneous felony-murder instruction was harmless.
The jury here found appellant not guilty of first degree murder, but convicted appellant of second degree murder and found the Penal Code section 190, subdivision (d), enhancement true. The jury failed to agree on a finding with regard to the Penal Code sections 12022.53 and 12022.5 allegations of personal use of a firearm. Thus, the verdict shows that some jurors believed appellant was the shooter and some were not convinced that he was. As to those jurors who believed appellant was the shooter, the erroneous felony murder instruction was harmless beyond a reasonable doubt. The jury was instructed on a valid theory of conscious-disregard-for-life malice, and on the evidence presented, no juror could have found felony murder without also finding conscious-disregard-for-life.
Appellant bases his prejudice argument concerning the erroneous felony murder instruction here on the "multiple derivative liability theories" given to the jury. Appellant notes that although Chun was acquitted of shooting at an inhabited vehicle, that offense was not charged in his case. Thus, he argues, "the starting point of the Chun prejudice analysis – an acquittal which created a 'strong suggestion' that the jury based its verdict on a valid theory of malice – is absent from Mr. Spillman's case." What the court actually said was, "The acquittal of the underlying felony strongly suggests the jury based its murder conviction on a valid theory of malice but, under the circumstances, we do not believe that it alone does so beyond a reasonable doubt. But for other reasons we find the error harmless." (Chun, supra, 45 Cal.4th at p. 1204.) Thus, the acquittal of the underlying felony in Chun played no part in the court's finding of harmless error.
Appellant argues, "The derivative liability instructions in Mr. Spillman's case allowed a verdict and finding against Mr. Spillman with no attention to his intent and/or mental state relative to malice-murder." He argues, that the instructions and evidence "offered the jury the easy alternative of finding that his actions in handing the pistol to [Rubi] – or doing whatever he did in the truck – aided and abetted a violation of section 417.3, 'exhibiting a firearm in the presence of a motor vehicle.' Thereafter, [Rubi]'s fatal shots into the Honda in violation of section 246 – which were murder under the court's erroneous instructions on second-degree felony murder – left Mr. Spillman to be convicted of murder by operation of the natural and probable consequences doctrine. In sum, the jury's verdict tells this court nothing except that the jury may have found Mr. Spillman aided and abetted a violation of section 417.3."
However, brandishing a firearm is not a trivial crime and courts have upheld convictions for murder as the natural and probable consequence of brandishing a firearm. (See, e.g., People v. Lucas (1997) 55 Cal.App.4th 721, 731-733; People v. Solis (1993) 20 Cal.App.4th 264, 272, disapproved on another ground in People v. Prettyman (1996)14 Cal.4th 248, 268, fn. 7.) Brandishing a firearm at an occupied vehicle moving along Highway 101 could clearly have the natural and probable consequence of murder, and aiding and abetting that brandishing is a legitimate basis for a murder conviction. Indeed, although appellant challenges the giving of the aiding and abetting instructions in general, he does not challenge the brandishing instruction itself. As to those jurors who believed Rubi was the shooter, they had been instructed on a valid theory of conscious-disregard-for-life malice, and on the evidence presented, no juror could have found that Rubi committed a felony murder that appellant aided and abetted without also finding that he aided and abetted a brandishing for which a conscious-disregard-for-life murder was the natural and probable consequence. No juror could have found that appellant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life-which is a valid theory of malice.
Thus, it is " 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.' (Neder v. United States (1999) 527 U.S. 1, 18...) which is the harmless-error inquiry under Chapman v. California (1967) 386 U.S. 18... (Neder, supra, 527 U.S. at pp. 15, 18)." (People v. Cross (2008) 45 Cal.4th 58, 69-70.)
The Aiding and Abetting Instructions
Appellant contends, "There was insufficient evidence to justify instructions on aiding and abetting, as the record did not support such a conclusion without resorting to conjecture and speculation."
" 'The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented. [Citation.]' (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529... see People v. Johnson (1980) 26 Cal.3d 557, 576..., Jackson v. Virginia (1979) 443 U.S. 307, 318 [... 99 S.Ct. 2781].) Substantial evidence is evidence ' "of ponderable legal significance.... reasonable in nature, credible, and of solid value." [Citations.]' (People v. Johnson, supra, 26 Cal.3d at p. 576.)" (People v. Campbell (1994) 25 Cal.App.4th 402, 408.) "Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense." (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
Appellant argues that although "[t]here may have been substantial evidence that Mr. Spillman personally fired the gun, based on the testimony of Mr. Garcia that Mr. Spillman had done so, and the testimony of Mr. Wooldridge that the arm holding the gun had belonged to a man... there was no equivalently substantial evidence that Mr. Spillman – if he did not personally fire the gun – aided and abetted Ms. Garcia in having done so, with the aiding and abetting theory being based on conjecture, speculation, and guesswork." Respondent argues, "Ignoring Antonio's testimony that appellant got the gun from the glove compartment, appellant fails to explain why the jury could not reasonably have adopted a hybrid theory of the case (i.e., derived partly from the prosecution's theory and partly from the defense's) that appellant initially had the gun but that Rubi fired it after he gave it to her."
The evidence supports the trial court's determination that aiding and abetting instructions should be given. Appellant and Rubi were friends and co-workers. Rubi was driving appellant's truck with his permission. Appellant was present at the scene of the crime, sitting right next Rubi, who the defense argued was, based on the evidence, the shooter. Appellant took the gun, engraved with his name, from the glove compartment before the shooting and placed it in a holster after the shooting. He told Rubi and Antonio not to say anything when they were stopped by the police. This evidence of presence at the scene, companionship, and conduct before and after the offense was sufficient to support the giving of the aiding and abetting instructions.
Defense Requested Instruction
The court instructed the jury with CALJIC No. 3.01 which states in part: "A person aids and abets the commission or attempted commission of a crime, when that person, one, with knowledge of the unlawful purpose of the perpetrator, and two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and three, by act [or] advice, aids, promotes, encourages, or instigates the commission of a crime." Appellant requested an instruction to explain the difference between an aider and abettor and an accessory after the fact. The proposed instruction read: "A person may not be found guilty as an aider and abettor unless the act, knowledge and intent required for aiding and abetting all occurred before or during the alleged crime. [¶] Any assistance offered by the defendant to the perpetrator of the crime after the crime has been committed is insufficient to establish that [he] [she] aided and abetted the perpetrator in the commission of the offense. [¶] If you have a reasonable doubt that the required act, knowledge and intent occurred before or during the alleged crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty."
The defense requested instruction is grounded in Penal Code sections 31 and 32. Section 31 attaches criminal liability as a principal to all persons "concerned in the commission of a crime" whether that person directly commits the crime or aids and abets in its commission. Section 32 attaches criminal liability as an accessory to a person who "after a felony has been committed" aids a principal in the felony with the intent that the principal may avoid or escape. Appellant contends, "The trial court erred in refusing on defense request to explain to the jury that liability as an aider and abettor attached only for acts which 'aided' or 'abetted' before or during the crime, and that aid after the crime, although criminal, did not constitute aiding and abetting." Appellant asserts, "The critical concern here is the 'line' between aid rendered while 'concerned in the commission of a crime,' and aid rendered 'after' a crime." Appellant argues, "Neither 3.01, nor any other instruction given, identified that temporal 'bright line' between 'before or during' and 'after' the crime, within the meaning of the law governing aiding and abetting."
Defense counsel argued that the instruction should be given because, "It clarifies sort of what I think the law deems a dividing line. And I don't think that the instruction itself really addresses that separation from the before and during, as opposed to after." The prosecutor said that the proposed instruction was "misleading and inaccurate" and "confusing" because one's conduct before and after an offense is committed can be used in determining whether one is an aider and abettor.
At appellant's first trial, the prosecutor had presented evidence and argument to support the theory that appellant fired the gun and that Rubi was an aider and abettor. Although the jury was unable to reach a unanimous verdict as to appellant, Rubi was convicted. Before appellant's second trial began, the defense brought a motion "to exclude evidence of liability as aider and abettor as barred by judicial estoppel." The defense also sought to prohibit the prosecutor from "present[ing] for the jury's consideration an alternate theory of liability of an aider and abettor." Citing People v. Sakarias (2005) 35 Cal.4th 140, appellant contended, "Given the conviction of the aider and abettor and the prosecution's theory that defendant Spillman was the shooter, the prosecution cannot argue in this second trial that defendant Spillman was merely an aider and abettor."
The trial court said that although it believed that it was obligated by the state of the record to give the jury the instructions on aiding and abetting, "This is an area that the Court feels the prosecution needs to be very, very cautious and prudent in how it's presented to the jury, and whether or not it is presented in a way that actually appears to be a theory by the prosecution, that it's being argued to the jury, or whether or not it is left to the jury to utilize as a theory." Defense counsel took full advantage of this restriction on the prosecution's argument, telling the jury that the prosecutor was "not going to tell you that there's any evidence that supports my client's aiding in any way. Her theory is that he's the shooter." He said that there was only "pure speculation" to support the idea that appellant aided and abetted Rubi. Defense counsel reviewed the aiding and abetting instructions and argued, "Now, the act, knowledge, and intent must all occur before or during the crime. Okay. So assuming that you agree that Rubi Garcia might be the shooter, and assuming that you are even considering something that the prosecutor doesn't even want you to consider, which is that my client aided, it's not a theory she presented to you, the fact that Mr. Spillman hid the gun under the seat is after the crime. It's after the shooting. Okay. It's not in any way evidence of aiding because it's not during or before the crime. It's important that you make that break in your head, okay. It's a significant legal point that conduct after the crime itself is not aiding and abetting. Any assistance offered after the crime is committed is insufficient to establish it. Hiding of a weapon is such conduct after the crime."
In CALJIC No. 3.01, the jury was instructed that there had to be proof that the aider and abettor, "with knowledge of the unlawful purpose of the perpetrator; and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and, three, by act [or] advice aids, promotes, encourages, or instigates the commission of a crime." The jury was instructed that "[m]ere presence at the scene of the crime, which does not [in] itself assist the commission of the crime, does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." By this language, the jury received the information that the act and the intent of the defendant had to precede, or coincide with the perpetrator's act and intent. Furthermore, even if we were to accept the argument that the aiding and abetting instructions were, in the abstract, susceptible to the misinterpretation appellant suggests, there was no reasonable likelihood that this jury would have adopted such a misinterpretation, given the fact that defense counsel expressly warned the jury against such an interpretation and neither the prosecutor nor the court suggested otherwise.
The Exclusion of Gang Evidence
Appellant contends, "The trial court erred in excluding evidence that Rubi Garcia and Antonio Garcia were Nortenos, where gang affiliation gave Antonio Garcia a motive falsely to accuse Mr. Spillman of a shooting committed by Rubi Garcia, and gave Rubi Garcia a motive to shoot Mr. Soto, who had been wearing blue."
Background
Before appellant's first trial on these charges, he sought to introduce evidence to support a defense theory of third party culpability. Appellant's theory was that Soto's death was a gang motivated shooting, that Rubi Garcia and Antonio Garcia were Norteno gang members, that Rubi perceived Soto to be a Sureno gang member because he was wearing blue, and that Rubi was the shooter. The theory included the element that Antonio Garcia's testimony that appellant was the shooter was false because of his bias in favor of Rubi because of their gang ties. Both counsel for Rubi and the prosecutor argued against the introduction of any gang evidence, including the testimony of a gang expert witness, but their objections were overruled and the evidence was admitted. The trial court based its decision to admit the evidence concerning gang membership on proposed defense evidence that one Michelle Johnson, who had been a fellow inmate with Rubi and had recently been interviewed by an investigator with the District Attorney's Office, would testify that Rubi had admitted to her that she shot Soto because she had thought that he was a Sureno. Appellant's trial counsel had argued that because Michelle Johnson would testify about Rubi's admission, evidence of gang membership of Rubi and Antonio and gang expert testimony was required in order to make the admission understandable to the jury. The trial court agreed.
This court has taken judicial notice of the record in People v. Garcia, H028474.
As it turned out, Michelle Johnson did not testify. Nevertheless, the other gang evidence, including the expert testimony, was admitted at appellant's first trial. After the receipt of this evidence, the trial court reflected on its ruling regarding the admissibility of the gang evidence and stated, "the Court made certain rulings in this case concerning gang evidence. The rulings that the Court made at the time were predicated upon the information the Court had before it at the time, which included a belief of the attorneys, that a statement by Michelle Johnson that had been ruled admissible by the Court would in fact be utilized in this case. [¶] And the Court, based a number of its rulings as to admissibility of gang evidence on the statements that were attributed to Rubi Garcia in that particular statement.... Had the Court known at that time that the Michelle Johnson statement or testimony would not be offered, the Court's review of that particular gang evidence and its admissibility may very well have been different and even somewhat more limited or excluded in its entirety. [¶] And the Court felt compelled to put that on the record should a reviewing court at some point in time need to review the admissibility of that evidence and the court's rationale or thought process as to why that evidence was admitted." (People v. Garcia, H028474, p. 14.)
The first trial ended with a mistrial being declared as to appellant and a first degree murder conviction as to Rubi. Following the first trial, Rubi Garcia appealed her conviction to this court, arguing that the trial court had erred by admitting the gang membership evidence and by permitting appellant's gang expert to testify. This court reviewed the strength of the gang evidence and concluded, "Given the exceedingly low probative value of this evidence, and its powerful prejudicial impact, and with due consideration of the deferential standard of review, we find that its admission was an abuse of discretion." (People v. Garcia, H028474, p. 19.) This court reversed Rubi Garcia's conviction.
Before appellant's second trial, in which he was the sole defendant, appellant once again sought admission of the gang evidence. He brought a motion "to present evidence of third party culpability, gang evidence, and gang expert testimony." The motion repeatedly referred to, and attached as an exhibit, the interview with Michelle Johnson conducted by the investigator in August 2004. Defense counsel argued that evidence of gang membership of Rubi and Antonio was relevant to show bias and relevant on the issue of "motive, identity, or intent." Defense counsel said that the gang evidence was "highly probative of what Rubi Garcia's intent and motive would have been to go from what is road rage, at least as the thing that might have drawn their attention to this person to rise to the next level of actually going so far as to shoot and kill." Neither Rubi Garcia nor Michelle Johnson testified.
The trial court denied the defense motion. The trial court said that "absent the statement of Michelle Johnson, there really just is a category of evidence in which it could be said, could be interpreted that they are gang members. The driving down the road, next thing that happens is Mr. Soto gets shot. There isn't anything in the two of those, absent her statement, that creates what the Court calls a nexus." The court also said that it was excluding the evidence under Evidence Code section 352 because the probative value of the proposed evidence was outweighed by the "undue consumption of time" and "substantial danger [of] confusing [the] issues or misleading the jury."
Discussion
Appellant contends that it was error to exclude the gang evidence. He argues that it was admissible as third party culpability evidence and to demonstrate bias and motive to fabricate by Antonio. He contends that it was an abuse of discretion to exclude this evidence because Evidence Code section 352 should be used only sparingly against a criminal defendant and that he had a constitutional right to present relevant exculpatory evidence.
Appellant states, "Mr. Spillman submits that this Court can resolve the issue by asking itself a simple question: If Mr. Spillman had also been a Norteno, would the prosecution have been allowed to introduce evidence that he, Rubi Garcia and Antonio Garcia had all been Nortenos, to establish that the reason Mr. Soto was shot was because he was wearing blue? The answer to this question is undoubtedly yes."
In People v. Hall (1986) 41 Cal.3d 826 , the Supreme Court addressed the issue of the standard for admitting evidence tending to show that someone else, rather than the defendant, may have committed the charged offense. The Hall court stated that the analysis of whether defense evidence of third-party culpability is admissible is the same as that for any other evidence: "[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code] § 352)." (Id. at p. 834.)
"To withstand a challenge under Evidence Code section 352, evidence of a third party's culpability 'need only be capable of raising a reasonable doubt of [the] defendant's guilt.' " (People v. Cudjo (1993) 6 Cal.4th 585, 609, quoting from Hall, supra, 41 Cal.3d at p. 833.) Although a trial court's discretionary power to exclude evidence under Evidence Code section 352 "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense" (People v. Cunningham (2001)25 Cal.4th 926, 999), a trial court's discretionary ruling under Evidence Code section 352 will not be disturbed unless the court acted in an "arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice[.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, the trial court did not exclude all evidence to support appellant's third party culpability theory. Defense counsel explicitly argued that Rubi, not appellant, was the shooter and developed evidence at trial to support this argument. Thus, the defense was not limited in presenting third party culpability evidence as to identity and opportunity to commit the crime. Nor was the defense precluded by the court's ruling from arguing that Rubi could have been motivated by road rage to shoot Soto. The court's ruling prevented appellant from developing the theory that the shooting was motivated by gang rivalries, that is, that Rubi shot Soto because she was a Norteno who perceived Soto as a Sureno. Without Michelle Johnson's testimony, that theory had no support. There was then no evidence that Rubi thought that Soto was a Sureno, and any basis for one perceiving him as such was simply that he was wearing a blue jumpsuit for work.
We did observe in People v. Garcia, H028474, that "there were numerous, glaring contradictions between undisputed evidence presented at trial and what Johnson had told the investigator that she had heard about the shooting." (P. 17.)
There seems to have been an unstated presumption throughout these proceedings that the additional factors of Soto being young, Hispanic, and male also would support that perception.
Appellant was not precluded from developing evidence that Antonio was biased in favor of Rubi because of their close relationship, which was thoroughly explored and argued by defense counsel at trial. Furthermore, the evidence of Rubi's Norteno gang affiliation was weak. As we noted in People v. Garcia, H028474, "An assessment of the strength of the underlying data on which [the gang expert] based his opinion about the gang motive must take into account that there was evidence that if [Rubi] had any gang affiliation it was arguably Sureno, rather than Norteno, in that she had had a long term relationship, and a child, with an admitted Sureno. In [the gang expert's] pre-trial testimony, he said that it would be 'extremely unusual' for an active Norteno gang member to be living with, and have a child with, a Sureno gang member." (P. 18.) Whether or not Antonio was an active Norteno gang member, given the weakness of the evidence of Rubi's gang affiliation, the court could properly limit the defense presentation of this aspect of the bias evidence.
The excluded evidence would have taken a fair amount of time to present and presented a danger of confusing the jury. More importantly, it did not have any significant probative value. Thus, we cannot say that the trial court, in excluding this evidence, acted in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J. & PREMO, J.