Opinion
D059014
05-23-2012
THE PEOPLE, Plaintiff and Respondent, v. DANIEL URUIZA et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FSB802136)
APPEALS from a judgment of the Superior Court of San Bernardino, Kyle S. Brodie, Judge. Affirmed as modified.
I.
INTRODUCTION
Defendants Daniel Uruiza, Guillermo Garcia, and Raymond Sullivan appeal from their convictions and sentences after a jury trial. Uruiza, Garcia, and Sullivan confronted the victim and his friend by declaring their gang affiliation and challenging the victim to a fight. During the confrontation, Uruiza pulled out a knife and stabbed the victim in the neck, killing him. The jury convicted Uruiza of first degree murder and street terrorism. The jury convicted Garcia and Sullivan of second degree murder and street terrorism. The jury also found true a gang enhancement alleged with respect to the murder count as to each defendant.
On appeal, Uruiza, Garcia, and Sullivan jointly contend (1) that the trial court erred in not instructing the jury on voluntary manslaughter based on heat of passion; (2) that this court should review the sealed transcript of an ex parte hearing at which the trial court ordered that certain identifying information about some witnesses not be disclosed to the defense; and (3) that the trial court erred in imposing and staying the sentence for the gang enhancement, rather than striking it. Uruiza and Garcia jointly contend that they received ineffective assistance of counsel because their attorneys failed to request a jury instruction on provocation that could have reduced the degree of murder. Garcia and Sullivan jointly contend that the evidence was insufficient to support their convictions for murder under an aiding and abetting theory, and also contend that, as a matter of law, murder cannot be a natural and probable consequence of the crime of disturbing the peace.
We reject the defendants' contentions, with one exception. We agree that the trial court erred in imposing and staying an additional 10-year prison sentence for the gang enhancement associated with the murder count, as to all defendants. We therefore modify the defendants' sentences to delete the 10-year enhancements under Penal Code section 186.22, subdivision (b)(1), and instead impose a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5). In all other respects, we affirm the judgment.
Further statutory references are to the Penal Code unless otherwise indicated.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
West Side Verdugo is a criminal street gang in San Bernardino County. It is composed of several smaller cliques or branches, including the 7th Street gang and the Mount Vernon gang. The members of West Side Verdugo do not like members of Los Angeles gangs coming into their territory in San Bernardino. Uruiza, also known as "Big D," and Sullivan are both members of West Side Verdugo's 7th Street gang. Garcia is an associate of West Side Verdugo and affiliates with its Mount Vernon clique.
On May 13, 2008, Garcia and Rolando Chavez, a fellow student at Arroyo Valley High School, became involved in a verbal altercation. Chavez felt that Garcia had disrespected him by giving him a dirty look. Garcia challenged Chavez by asking him where he was from, which in gang parlance was essentially a question about Chavez's gang affiliation. Chavez's good friend, Robert Banuelos, witnessed the interaction between Garcia and Chavez.
After the altercation, campus security escorted both Chavez and Garcia to be interviewed by school authorities. As Garcia waited with a school police officer, Banuelos was brought in to discuss what had happened. When Banuelos walked by, Garcia became agitated, stood up, and shouted obscenities at Banuelos. Garcia said, "Don't bring him in here or there will be trouble. It ain't over."
Garcia was suspended from school for five days. Chavez received a two-day suspension. After the suspensions were handed down, Garcia told Chavez that he, Garcia, was "going to get [Chavez]," that "[i]t ain't over," and that "payback is a bitch."
Six days later, on May 19, Banuelos and Chavez were together when Garcia approached them and verbally accosted them. Banuelos challenged Garcia to a fight, but Garcia said he would not fight Banuelos because Banuelos was too big. Banuelos then suggested that Garcia fight Chavez, instead. Garcia and Chavez fought briefly but then separated and left the area.
Banuelos was six feet two inches tall and weighed approximately 250 pounds.
The following day, Banuelos, Chavez, and Banuelos's girlfriend were walking home from school together. Uruiza, Garcia, Sullivan, and a few other people approached Banuelos's group. The men in the group that approached Banuelos declared that they were from West Side Verdugo and asked Banuelos where he was from. Banuelos responded that he was from Los Angeles and started to walk away.
Uruiza and the others followed Banuelos and surrounded him. Uruiza pulled a knife out of his pocket and stabbed Banuelos in the neck. Uruiza then pulled the knife out of Banuelos's neck, folded it, and put it in his pocket. Uruiza and his companions fled the scene. While they were running away, some of them shouted, "[T]hat's what you get," and "[T]his is on 7th Street." Garcia yelled out, "7th Street Mount Vernon West Side Verdugo putting in work."
Banuelos died within minutes of being stabbed. Police officers arrested Uruiza, Sullivan, and Garcia soon thereafter. Sullivan responded to a question about what had happened by saying, " 'I was trying to stay out of trouble, but the fool would not shut up.' " Later, all three defendants denied having been anywhere near the school on the day of the stabbing or having participated in the violence that led to Banuelos's death.
2. The defense
Uruiza testified at trial. He admitted to being a member of the 7th Street gang, which was part of West Side Verdugo. He also admitted that he initially lied to police about what had occurred, and even admitted that he was the person who stabbed Banuelos. However, Uruiza claimed that he was accompanied by only Sullivan and Garcia on the day of the stabbing, and maintained that he had not been with a larger group of gang members and that he had not planned to confront anyone that day. According to Uruiza, he knew about Garcia's prior confrontation with Chavez, but he did not know Banuelos. As Uruiza and the two other defendants walked by Chavez, Chavez gave them dirty looks, and Uruiza heard Banuelos saying things like, "What the fuck you fools looking at?" and "Where you from?" Uruiza responded, "Where the fuck you from?"
Uruiza testified at trial that after responding to Banuelos, Uruiza decided to leave, and turned to walk away. As Uruiza started to walk away, someone shouted, "Hey." When Uruiza turned around, he saw Banuelos, who looked like he was about to start a fight. Uruiza said that Banuelos "was trying to swing" at him, but Uruiza moved. According to Uruiza, someone handed him a knife, and he used it to slash toward Banuelos. Banuelos jumped back to avoid being cut. Uruiza then brought the knife up again, and this time plunged it into Banuelos's neck. Uruiza said that he was scared of Banuelos due to Banuelos's size. After the stabbing, Uruiza ran away and tossed the knife into a nearby field. B. Procedural background
An indictment filed on January 26, 2009, charged Uruiza, Garcia, and Sullivan with murder (§ 187, subd. (a); count 1) and street terrorism (§ 186.22, subd. (a); count 2). The indictment also alleged that the defendants committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The indictment further alleged that Uruiza personally used a deadly weapon in committing the murder (§ 12022, subd. (b)(1)).
A jury found Uruiza guilty of first degree murder (count 1) and street terrorism (count 2), and found true the enhancements alleged with respect to him. The same jury found Garcia and Sullivan guilty of second degree murder (count 1) and street terrorism (count 2), and found true the enhancement allegation that Garcia and Sullivan committed the murder for the benefit of, at the direction of, or in association with a criminal street gang.
The trial court sentenced Uruiza to an aggregate term of 26 years to life in state prison. The court sentenced Garcia and Sullivan to terms of 15 years to life in state prison.
As to all three defendants, the trial court stayed the sentences for both the street terrorism conviction and the gang enhancement.
All three defendants filed timely notices of appeal.
III.
DISCUSSION
A. The trial court was not required to instruct on voluntary manslaughter based on heat of passion or provocation
Uruiza contends that he was entitled to an instruction on voluntary manslaughter based on heat of passion/provocation. Sullivan and Garcia join in Uruiza's claim that he was entitled to this instruction.
1. Additional background
During the jury instruction conference between the attorneys and the court, Uruiza's counsel requested that the court provide an instruction on voluntary manslaughter based on heat of passion/provocation. However, during the discussion, counsel conceded that "[t]here's not a whole lot to hang heat of passion on," "[s]o [he] wouldn't argue as vigorously for that [instruction]." The trial court responded that in the court's view, the evidence was such that even if one believed Uruiza's story, the facts would not appear to "rise to the level of provocation that would reduce a murder to manslaughter." After this exchange, Uruiza's attorney argued that the court should instruct the jury on voluntary manslaughter based on imperfect self-defense. The trial court agreed to instruct on imperfect self-defense. The court instructed the jury on voluntary manslaughter under a theory of imperfect self-defense, but not under a heat of passion/provocation defense.
2. Legal standards
a. Murder and the lesser-included offense of voluntary manslaughter based on provocation or unreasonable self-defense
" ' "Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. (§ 192.)" [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] "But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense [citations]." Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation].' [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye), italics omitted.)
Heat of passion and imperfect self-defense are not elements of voluntary manslaughter that must be proved beyond a reasonable doubt to support a conviction for voluntary manslaughter under either theory. (People v. Rios (2000) 23 Cal.4th 450, 469-470.) Rather, if "the People's own evidence suggests that the killing may have been provoked or in honest response to perceived danger," or the defendant "proffer[s] some showing on these issues sufficient to raise reasonable doubt of his guilt of murder" then "the People must prove beyond a reasonable doubt that these circumstances were lacking in order to establish the murder element of malice." (Id. at pp. 461-462, citations omitted.)
b. Instructing on lesser-included offenses
It is settled that in criminal cases, even in the absence of a request, the trial court must instruct . . . on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)
Instructions on lesser included offenses "are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.]" (Breverman, supra, 19 Cal.4th at pp. 162-163.)
"On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support" (Breverman, supra, 19 Cal.4th at p. 162), even if the instructions have been specifically requested by the defense. (People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, superseded in part by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)
3. Analysis
The instruction that Uruiza's attorney requested, and that he now contends on appeal should have been given, is CALCRIM No. 570, which provides in relevant part:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured [his] reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up [his] own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing
the same facts, would have reacted from passion rather than from judgment."
This instruction demonstrates that a heat of passion/provocation defense has both an objective and a subjective component. To satisfy the objective component of the heat of passion/provocation theory of voluntary manslaughter, there must be evidence of provocation that is " 'caused by the victim [citation], or [is] conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]' [Citation.]" (Moye, supra, 47 Cal.4th at pp. 549-550, italics added.) To satisfy the subjective component, "the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.]" (Id. at p. 550.)
In People v. Manriquez (2005) 37 Cal.4th 547, 586 (Manriquez), the Supreme Court concluded that a victim's repeated derogatory insults directed at a defendant in the context of a barroom killing did not constitute substantial evidence of provocation. The Manriquez court reasoned:
"[The eyewitness] testified that [the victim] called defendant a 'mother fucker' and that he also taunted defendant, repeatedly asserting that if defendant had a weapon, he should take it out and use it. Such declarations, as recounted by [the eyewitness], comprised the only evidence of provocative conduct attributed to the victim, and plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment."
Accordingly, the Manriquez court held that the trial court had properly denied the defendant's request for an instruction on voluntary manslaughter based on the theory of a sudden quarrel or heat of passion. (Manriquez, supra, 37 Cal.4th at p. 586.) Similarly, in Moye, our Supreme Court held that the evidence did not support an instruction on a sudden quarrel/heat of passion theory of voluntary manslaughter, where the defendant bludgeoned his victim to death with a baseball bat. (Moye, supra, 47 Cal.4th at p. 540-541.) The defendant claimed to have used the bat defensively to fend off an attack from the homicide victim, but his own uncontested testimony established that he had not acted rashly, or without due deliberation and reflection, or from strong passion rather than from judgment. (Id. at p. 541.) For these reasons, the Moye court concluded that there was not substantial evidence that defendant killed while subjectively under the actual influence of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. (Id. at p. 553.)
In order for a manslaughter instruction to have been required in this case, there would have to have been evidence from which a jury composed of reasonable persons could have concluded that the lesser offense, but not the greater, was committed. (Moye, supra, 47 Cal.4th at p. 553.) In determining whether there is substantial evidence to support an instruction, the trial court is bound to take the defendant's testimony, at least for this limited purpose, as entirely true, "regardless of whether it was of a character to inspire belief. [Citations.]" (People v. Wilson (1967) 66 Cal.2d 749, 762.) Even if one were to accept as true Uruiza's testimony as to what occurred on the day he stabbed Banuelos, that testimony does not provide evidence from which a reasonable trier of fact could conclude that either the objective or the subject element of a heat of passion/provocation defense existed.
Uruiza testified that Chavez had been "maddogging" him and his friends, and that there was a verbal altercation between Uruiza's group and Chavez and Banuelos during which both groups claimed gang affiliations. According to Uruiza, after this encounter, he intended to walk away, and was doing so when someone yelled "Hey" and Uruiza turned around. According to Uruiza, Banuelos then began to swing at him. Uruiza swung the knife at Banuelos, he said, because he was afraid of Banuelos, although Uruiza admitted that he did not see a weapon in Banuelos's possession. This testimony does not demonstrate that Banuelos did anything that would " 'cause an ordinarily reasonable person of average disposition to act rashly or without due deliberation and reflection.' " (Moye, supra, 47 Cal.4th at p. 550, citation omitted.) Further, there is simply no evidence to support the subjective element of this form of manslaughter, i.e., that Uruiza killed Banuelos while under " ' the actual influence of a strong passion' induced by such provocation. [Citation.]" (Ibid.) At most, the evidence suggests that Uruiza may have been entitled to an instruction on voluntary manslaughter based on imperfect self-defense, an instruction that the trial court gave.
Because "no fundamental unfairness or loss of verdict reliability results from the lack of instructions on a lesser included offense that is unsupported by any evidence upon which a reasonable jury could rely" (People v. Holloway (2004) 33 Cal.4th 96, 141), we have no basis for reversing any of the defendants' convictions on the ground that the trial court failed to instruct the jury on voluntary manslaughter based on heat of passion/provocation. B. Our review of the sealed transcript of the ex parte hearing reveals no abuse of discretion
All three defendants request that this court review the transcript of the in camera hearing after which the trial court ordered that certain witness identifying information not be disclosed to the defense pursuant to section 1054.7, to determine whether the trial court's ruling was proper. Specifically, the defendants request that this court determine whether the "good cause" requirement of section 1054.7 was met, such that the court did not abuse its discretion in issuing an order protecting the identities of the witnesses. The People do not oppose the defendants' request.
"A defendant has a 'right to the names and addresses of prosecution witnesses and a right to have an opportunity to interview those witnesses if they are willing to be interviewed.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 458, italics omitted (Panah).) However, discovery of a witness's identifying information may be limited out of concern for the witness's safety. (§ 1054.7.)
Protective orders made under section 1054.7 are subject to review for abuse of discretion. (Panah, supra, 35 Cal.4th at p. 458.) This is because section 1054.7 establishes that a trial court has discretion to deny, restrict, or defer disclosure for good cause, which is defined in the statute to include "threats or possible danger to the safety of a victim or witness." (Ibid.)
The transcript of the relevant hearing reveals that there was clearly good cause for the trial court's order because there was specific, credible information to the effect that individuals close to the defendants were seeking out identifying information about the witnesses, and that these witnesses were in potential danger. We therefore conclude that the trial court did not abuse its discretion in ordering that these witnesses' identifying information be protected. C. The trial court should not have imposed and stayed the gang enhancement
The defendants contend that the 10-year gang enhancement that the trial court imposed and stayed pursuant to section 186.22, subdivision (b)(1) should have been stricken, instead. The People concede that under the rule announced in People v. Lopez (2005) 34 Cal.4th 1002, the trial court should not have imposed and stayed an additional 10-year enhancement on the defendants, but instead, should have sentenced the defendants pursuant to subdivision (b)(5) of section 186.22, an alternative sentencing structure to the 10-year term required under section (b)(1) of section 186.22 that is to be used when a defendant is convicted of a felony that is punishable by a term of life in prison. We accept the People's concession. In light of the fact that the defendants were all sentenced to a term of either 25 years to life in prison (Uruiza) or 15 years to life in prison (Garcia and Sullivan), the trial court should not have imposed and stayed the additional 10-year gang enhancement under section 186.22 (b)(1). (See Lopez, supra, 34 Cal.4th at p. 1011.) Rather, because all three defendants received indeterminate sentences, the trial court should have imposed a 15-year minimum parole eligibility period as to all three defendants pursuant to section 186.22, subdivision (b)(5) with respect to the jury's true finding on the gang enhancement allegation. We therefore modify the defendants' sentences to delete the 10-year enhancements under section 186.22, subdivision (b)(1), and instead, impose a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5) as to all three defendants. D. Ineffective assistance of counsel regarding jury instruction on provocation
In briefing, the People suggest that the alternative sentencing provision provided in subdivision (b)(4) of section 186.22 is the provision that should apply to the defendants in this situation. However, a review of that provision demonstrates that it applies when a defendant is convicted of certain offenses, but not first or second degree murder, the convictions at issue in this case. At the time the defendants were sentenced, subdivision (b)(4) of section 186.22 provided:
"(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
"(A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.
"(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.
"(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1" (Stats. 2009, ch. 171, § 1, effective Jan. 1, 2010, repealed Jan. 1, 2012 (italics added).)
Uruiza and Garcia contend that they received ineffective assistance of counsel when their trial attorneys failed to request that the court instruct the jury with CALCRIM No. 522. CALCRIM No. 522 provides:
"Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide.
"If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]
"[Provocation does not apply to a prosecution under a theory of felony murder.]"
1. Additional background
During deliberations, the jury asked several questions of the court, including requesting several clarifications as to some of the instructions. In consulting with the attorneys about the jury's questions, the court mentioned the possibility of further instructing the jury with CALCRIM No. 522. Uruiza's counsel did not request the instruction, and said that providing further instructions to the jury was unnecessary, in part because the jury was "confused enough without more instructions." Counsel for Garcia indicated that he was in favor of giving part of the instruction, but did not expressly request that the court do so. The trial court did not provide the instruction.
2. Legal standards for claims of ineffective assistance of counsel
"An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.]" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147 (Montoya).)
"To establish prejudice, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] In demonstrating prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel.' [Citation.]" (Montoya, supra, 149 Cal.App.4th at p. 1147.)
"In determining whether counsel's performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citation.]" (Montoya, supra, 149 Cal.App.4th at p. 1147.) "Our Supreme Court recently reiterated the obligations of appellate courts in reviewing claims of ineffective assistance of counsel: ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of professional assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" ' [Citation.]" (Ibid.)
" 'Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. [Citation.]' [Citation.]" (Montoya, supra, 149 Cal.App.4th at pp. 1147-1148.) "Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. [Citations.]" (Id. at p. 1148.)
3. Analysis
"[A]n instruction on provocation for second degree murder is a pinpoint instruction that need not be given sua sponte by the trial court. [Citations.]" (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333.) Uruiza and Garcia contend that they received ineffective assistance of counsel because their attorneys did not affirmatively request that the trial court provide the jury with CALCRIM No. 522 to inform the jury that provocation can reduce first degree murder to second degree by negating the element of premeditation and deliberation (or, alternatively, may reduce murder to manslaughter). We conclude that neither defendant can demonstrate either that his attorney performed deficiently or that he was prejudiced by counsel's failure to request this particular instruction.
With respect to Garcia, because the jury convicted Garcia of second degree murder, insofar as the instruction relates to the reduction of first degree murder to second degree murder, it could have had no bearing on Garcia's conviction on this count and he can demonstrate no prejudice. To the extent that Garcia is arguing that there was sufficient evidence that he, personally, was provoked, such that his counsel should have requested this instruction to inform the jury that sufficient provocation could reduce murder to voluntary manslaughter, there was evidence that the victim challenged Garcia to a fight on the day before the murder, but there was no evidence that the victim provoked Garcia in any manner on the day of the murder. Garcia was therefore not entitled to a heat of passion/provocation instruction with respect to reducing the offense from murder to voluntary manslaughter on this theory. To the extent that Garcia may be arguing that Uruiza was entitled to a provocation instruction regarding the reduction of murder to voluntary manslaughter, and that Garcia might have benefited from the giving of this instruction as to Uruiza, first, as discussed in part III.A, ante, Uruiza was not entitled to such an instruction. Second, the fact that the perpetrator may have been provoked would not serve to lessen the mens rea of an aider and abettor. Rather, Garcia's liability would have been based on his own mens rea. (See People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Thus, even if the evidence had warranted giving this instruction as to Uruiza, the instruction would not have pertained to Garcia, and therefore, could not have benefited him. Garcia's attorney thus cannot be considered to have performed deficiently by not requesting an instruction to which he was not entitled.
Because Garcia simply joined in Uruiza's argument on this issue rather than raising an independent argument, we attempt to address all of the possible contentions that Garcia might have intended to raise.
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With respect to Uruiza, the record discloses that counsel's decisions concerning this instruction were reasonable tactical decisions. Again, as a reviewing court, we must "defer to counsel's reasonable tactical decisions" when we consider a defendant's claim that counsel was ineffective. (Montoya, supra, 149 Cal.App.4th at p. 1147.) Uruiza's defense clearly focused on self-defense, relying on a theory that Uruiza was frightened of Banuelos and felt that he was being attacked, not that he was provoked into attacking Banuelos. Given this theory of the defense, it was reasonable for counsel not to request CALCRIM No. 522. Uruiza's counsel also had a reasonable tactical reason for requesting that the trial court not instruct the jury with CALCRIM No. 522 when the court itself raised the possibility of giving that instruction. As Uruiza's attorney stated, he believed the jury was confused enough with the instructions that it had already been given, and that giving the jury additional instructions would serve only to further confuse the jury. In addition, it is possible that defense counsel wanted the jury to choose between first degree murder and voluntary manslaughter based on imperfect self-defense, only, and did not want the jury to have the option of finding Uruiza guilty of second degree murder. We conclude that counsel may have made a calculated, reasonable tactical decision not to request that the court instruct the jury on this point, and therefore, did not perform deficiently. E. Aiding and abetting
Sullivan and Garcia contend that the evidence is insufficient to support their convictions for murder under an aiding and abetting theory. Apparently recognizing that their convictions may be upheld under the natural and probable consequences theory of aiding and abetting, they also contend that, as a matter of law, murder cannot be considered a natural and probable consequence of aiding and abetting the crime of disturbing the peace. We reject both contentions.
1. Sufficiency of the evidence to support the convictions for second degree murder
Sullivan and Garcia first argue that there is insufficient evidence to establish that they aided and abetted Uruiza's murder of Banuelos. Specifically, both men contend that they were merely present when Uruiza stabbed Banuelos, and that this is not sufficient to permit them to be convicted of aiding and abetting in the murder.
a. Standard of review
"A state court conviction that is not supported by sufficient evidence violates the due process clause of the Fourteenth Amendment and is invalid for that reason." (People v. Rowland (1992) 4 Cal.4th 238, 269, citing Jackson v. Virginia (1979) 443 U.S. 307, 313-324.) In determining the sufficiency of the evidence, "the relevant question is 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." (Jackson v. Virginia, supra, at p. 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
b. Analysis
"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.)
" 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' [Citation.] Accordingly, an aider and abettor 'shares the guilt of the actual perpetrator.' [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must '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.' [Citation.] The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123 (Mendoza).)
"Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (Mendoza, supra, 18 Cal.4th at p. 1123.) "A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen." (CALJIC No. 3.02.)
"To trigger application of the 'natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (People v. Prettyman (1996) 14 Cal.4th 248, 269.) "The elements of aider and abettor liability . . . on the natural and probable consequences theory are the following: 'the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; [fn. omitted] and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.' [Citation.] The issue 'is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' [Citation.]" (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) Whether the crime charged is the natural and probable consequence of the target crime is a factual question for the jury. (People v. Cummins (2005) 127 Cal.App.4th 667, 677 (Cummins).)
The factual basis of the target crime of disturbing the peace was that the defendants engaged in a gang confrontation in which they essentially challenged the victim and his friend, Chavez, to fight. There is substantial evidence that Sullivan and Garcia aided and abetted this crime, and that the murder of Banuelos was the natural and probable consequence of all of the defendants' actions in disturbing the peace by engaging in a gang confrontation. Sullivan and Garcia were not simply present at the crime scene. Rather, the evidence demonstrated that Garcia had been involved in two previous confrontations with Chavez, and that Banuelos was with Chavez at the time of the second confrontation. The evidence demonstrates that on the day of the murder, Garcia, who attended high school with Chavez and Banuelos, met up with Sullivan, Uruiza, and others and pointed out Chavez and Banuelos to the others. The group confronted the two men and Banuelos's girlfriend, declaring that they were from West Side and asking Banuelos to declare his gang affiliation. In this context, it was reasonable for the jury to infer that Garcia and Sullivan were not mere eyewitnesses to this potentially dangerous interaction between members of different gangs, but rather, that they were providing back-up for Uruiza and were there to threaten and intimidate the victims. The record clearly demonstrates that Sullivan and Garcia promoted and encouraged Uruiza in committing the offense of disturbing the peace by challenging someone to fight.
Garcia and Sullivan argue that, as a matter of law, murder cannot be a natural and probable consequence of disturbing the peace. They contend that because the offense of disturbing the peace is "a minor crime—a misdemeanor—involving no weapons and minimal force," then "murder cannot logically or legally be a natural and probable consequence of such a minor crime."
The question whether one offense can be the natural and probable consequence of another offense is generally considered to be a question of fact for the fact-finder to determine, and not an area where courts typically made a broad pronouncement that a particular offense could not be the natural and probable consequence of another offense as a matter of law. (See, e.g., People v. Medina (2009) 46 Cal.4th 913, 920 ["A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case and is a factual issue to be resolved by the jury" (citations omitted)]; Cummins, supra, 127 Cal.App.4th at p. 677 [" '[W]hether the crime charged is the natural and probable consequence of the planned offense is a factual question for the jury to decide' " (citations omitted)].)
We reject the notion that one may determine whether an offense is the natural and probable consequence of another offense simply by considering whether the planned offense is a felony or misdemeanor, or is considered, in the abstract, to be "serious" as opposed to "minor," as the defendants suggest. (See People v. King (1938) 30 Cal.App.2d 185, 200 [plan for misdemeanor simple assault resulted in death when one conspirator used a deadly weapon]; People v. Lucas (1997) 55 Cal.App.4th 721, 732-733 (Lucas) [misdemeanor brandishing a gun].) "Given that the natural and probable consequences doctrine looks to the reasonable likelihood that the nontarget murder will result from the target offense, it would appear that applying the label 'felony' or 'misdemeanor' to the target offense is not talismanic in deciding whether the aider and abettor can be convicted of a nontarget murder. The key factor is the ability to anticipate the likelihood that the nontarget offense will result from the target offense." (People v. Canizalez (2011) 197 Cal.App.4th 832, 854 (Canizalez).) "We cannot look to the naked elements of the target crime but must consider the full factual context in which appellants acted." (Ibid., citing Lucas, supra, 55 Cal.App.4th at p. 733.) "The requirement that the nontarget offense be reasonably foreseeable from the nature of the target offense ensures that in most circumstances, aiding and abetting a misdemeanor will not have murder as its natural and probable consequence, but it does not mandate it." (Canizalez, supra, at p. 854.)
Given the underlying facts of the disturbance of the peace charged in this case, i.e., a gang challenge to fight, the likelihood that someone would be seriously injured and die as a result of injuries suffered during a resulting attack was reasonably foreseeable. We therefore reject Garcia and Sullivan's contention that murder can never be a natural and probable consequence of disturbing the peace.
IV.
DISPOSITION
The sentences for all three defendants are modified to delete the 10-year gang enhancement prison terms imposed and stayed under section 186.22, subdivision (b)(1), and to impose a 15-year minimum parole eligibility period as to each defendant under section 186.22, subdivision (b)(5). The trial court shall amend the abstracts of judgment in conformance with this modification, and shall forward a copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
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AARON, J.
WE CONCUR:
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McDONALD, Acting P. J.
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O'ROURKE, J.
It would appear that subdivision (b)(5) is what applies to the defendants in this case. At the time the defendants were sentenced, it provided:
"Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (Stats. 2009, ch. 171, § 1.)