Opinion
G052282
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN RAPHAEL VELA, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CF0100) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed and remanded with directions. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Sixteen-year-old defendant Adrian Raphael Vela and his fellow gang member Chris Ochoa "hit up" (confronted) two suspected rival gang members. Ochoa then pulled out a gun and shot the two victims, killing one of them. Vela was tried as an adult and a jury found him guilty of murder and attempted murder as an accomplice. The trial court had instructed the jury that it was possible for a murder and an attempted murder to be a natural and probable consequence of a misdemeanor offense of fighting or challenging someone to a fight in public (disturbing the peace).
In this appeal, Vela makes several interrelated claims of instructional error. But the thrust of his argument is that a person cannot be held vicariously liable for murder and attempted murder based on the commission of an underlying misdemeanor offense. Vela is mistaken. The trial court's instructions accurately stated the law regarding accomplice liability under the natural and probable consequences doctrine.
Vela also challenges two aspects of his aggregate prison sentence of 72 years to life. For reasons we shall explain, the two gang-related firearm sentencing enhancements that were imposed do not violate the equal protection clause. Further, Vela's sentence is not a cruel and unusual de facto life sentence. Due to recent statutory changes, a "youth offender parole hearing" will take place after 25 years and Vela will be eligible for release from prison at that time. (Pen. Code, § 3051.)
Further undesignated statutory references will be to the Penal Code.
Nevertheless, we will remand the matter for a limited purpose. The trial court is directed to determine whether Vela had an adequate opportunity to make a complete record of any youth-related sentencing factors at the time of his offense. If not, both parties may put on the record any relevant evidence that demonstrates his "culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin).)
I
FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2009, Christopher Ochoa was at Adrian Vela's apartment in Anaheim. Ochoa and Vela are both members of 7th Street, a relatively small criminal street gang located in Santa Ana. The gang claims the territory of 6th and 7th Streets and marks that area with the gang's graffiti. Seventh Street's main rival was F-Troop, a gang that claims the territory that surrounds 7th Street's turf. Members of 7th Street felt it important to let people know who was in charge of its neighborhood.
At around noon, Hector Martinez drove to Vela's apartment. Martinez was a long-time associate of the 7th Street gang. Vela and Ochoa asked Martinez to take them "cruising" to Santa Ana to look for members of F-Troop and to look for rival gang tagging in 7th Street's turf. Ochoa wore gloves and indicated he had a gun. Martinez drove Vela and Ochoa to Santa Ana.
When they arrived in Santa Ana, Martinez drove around 7th Street's territory. As they were cruising the area, they talked about Ochoa's gun and were looking for rival gang members and rival graffiti. Vela and Ochoa asked Martinez to stop because they saw two males (later identified as Martin Herrera and David Frias) whom they suspected to be rival gang members. Martinez made a U-turn and pulled into the parking lot of an apartment complex. When Martinez stopped the car, Vela got out and said that he was going to "hit these guys up." As Vela walked towards Herrera and Frias, Martinez backed his car into a parking space so that it was facing towards the street. After about four minutes, Ochoa loaded his gun, concealed it under his clothing, and got out of the car to check on Vela.
Martinez stayed in the car and could not clearly see what was going on because there was a tree blocking his view. But Martinez was able to see some gesturing as if words were being exchanged between Vela, Ochoa, Herrera, and Frias. During the confrontation, Vela and Ochoa stood side-by-side, about three feet away from Herrera and Frias. Ochoa then pulled out his gun and Herrera raised his hands in surrender. Ochoa shot Herrera in the head, killing him. Ochoa shot Frias in the face.
Vela and Ochoa immediately ran back to Martinez's car and got in. Ochoa was still holding the gun and placed it in his lap. Ochoa told Martinez to hurry up and leave. In an excited voice, Vela said, "Did you see those fools crying for their life?" Martinez got on the freeway and headed towards Anaheim. Once they were in Anaheim, Ochoa leaned out the window and threw the bullets from the gun into a sewer drain on the side of the street. Martinez drove to a friend of Vela's house located somewhere in Anaheim where Vela and Ochoa buried the gun in the backyard.
Two days later, the police arrested Martinez. A witness had written down the license plate number of his car and called 911. Initially, Martinez did not tell the police who was involved in the shooting because he feared retaliation and being labeled a "rat." Vela and Ochoa had told him, "Don't say nothing." However, about nine months later, Martinez agreed to testify in exchange for a 13-year sentence.
The prosecution charged Vela in a three-count information with murder, attempted murder, and being an active participant in a criminal street gang. (§§ 187, 664, subd. (a), 186.22, subd. (a).) The prosecution alleged that the murder and the attempted murder were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The prosecution further alleged that during the commission of the gang-related murder and attempted murder, another principal intentionally discharged a firearm causing death and great bodily injury. (§ 12022.53, subds. (d) & (e)(1).)
A jury found Vela guilty of the charges and found true the allegations. The trial court sentenced Vela to an aggregate prison term of 72 years to life. The court imposed 15 years to life for the murder, 7 years for the attempted murder, and two 25-year-to-life terms for the gang-related firearm enhancements. The court stayed the sentence on the substantive gang offense. (§ 654.)
II
DISCUSSION
A. Natural and Probable Consequences Jury Instruction Claim
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] '"In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
In California, criminal liability extends not only to direct perpetrators of crimes, but also to any accomplices. (§ 31.) When a defendant commits a crime with an accomplice, he is not only directly liable for any crimes he intends to commit (the target offenses), but he is also vicariously liable for any other crimes (nontarget offenses) committed by his accomplice that were a natural and probable consequence of the target offenses. (People v. Olguin (1994) 31 Cal.App.4th 1355.)
An objective test is used in determining "whether a particular criminal act was a natural and probable consequence of another criminal act." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) "Consequently, the issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." (Ibid.)
A trial court properly instructs the jury on the natural and probable consequences doctrine when there is substantial evidence that a defendant and his accomplice committed a target offense, and when a jury could reasonably find that the nontarget offense committed by the defendant's accomplice was a "'natural and probable consequence'" of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 269.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
Here, the trial court instructed the jury using the pattern instruction that explains the "natural and probable" consequences doctrine. (CALCRIM No. 403.) In relevant part, the instruction stated: "Before you may decide whether the defendant is guilty of murder under the natural and probable consequences doctrine, you must decide whether he is guilty of Disturbing the Peace by Fighting or Challenging Someone to Fight. [¶] To prove that the defendant is guilty of murder, the People must prove that: 1. The defendant is guilty of Disturbing the Peace; 2. During the commission of that crime, a coparticipant in that crime committed the crime of murder; AND 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the Murder was a natural and probable consequence of the commission of Disturbing the Peace."
The trial court also instructed the jury using the pattern instruction that explained the elements of the target crime of disturbing the peace. (CALCRIM No. 2688.) The instruction stated: "Here is the legal definition of disturbing the peace in violation of Penal Code section 415 (1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully and unlawfully (fought/ or challenged someone else to fight); AND 2. The defendant and the other person were (in a public place) when (the fight occurred/or the challenge was made). [¶] Someone commits an act willfully when he does it willingly or on purpose." The court further instructed the jury on the elements of the nontarget offenses (second degree murder and attempted murder). (CALCRIM Nos. 520, 600.)
Vela contends that: "There was insufficient evidence here to support an instruction suggesting it was reasonably probable that a hit-up would result in a murder." We disagree. Vela and Ochoa, both 7th Street gang members, asked Martinez to drive them around their gang's territory to look for rival gang members and rival graffiti. There was a discussion in the car about Ochoa having a firearm. When two possible rival gang members were spotted, Vela and Ochoa asked Martinez to stop and before getting out of the car, Vela said: "I'll be back, I'm going to go hit these guys up."
During the trial, a gang expert testified that: "A 'hit up' is when a member or members of a gang will confront a person or persons and ask them about their gang affiliation." He also testified that: "The chances of the probability of a conflict or violence is very, very high. Anything from being shot, to being beat up with a fist, or kicked." He further testified that within the gang subculture, fellow gang members are expected to provide "back up" and if they have a firearm, they are expected to use it during a "hit up" or a confrontation. Thus, there was evidence from which a jury could reasonably find that a murder (the nontarget offense) was a natural probable consequence of a "hit-up" under these circumstances.
Vela makes three additional interrelated claims of instructional error based on the "natural and probable" consequences doctrine. Vela contends that: 1) if the target offense is a misdemeanor, a murder cannot be the nontarget offense; 2) in such a case, the nontarget offense is limited to involuntary manslaughter; and 3) the trial court erred by not instructing on involuntary manslaughter. We disagree and shall address each contention in turn.
1. A murder can be a probable consequence of a misdemeanor.
Under the natural and probable consequences doctrine, if the target offense is a misdemeanor, a murder or an attempted murder may be a natural and probable consequence based on the particular circumstances. (See, e.g., People v. Montes (1999) 74 Cal.App.4th 1050, 1055 [target offenses were simple assault and disturbing the peace; nontarget offense of attempted murder was a natural and probable consequence]; People v. Medina (2009) 46 Cal.4th 913, 920-921 [target offense was simple assault; nontarget offenses of murder and attempted murder were natural and probable consequences]; People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 (Gonzales) [target offense was simple assault; nontarget offense of murder was a natural and probable consequence].)
Again, Vela contends that if the alleged target offense is a misdemeanor, a nontarget offense of murder or attempted murder cannot be a natural and probable consequence. But he cites no cases in support of that proposition. Vela's argument appears to be based on improperly conflating the natural and probable consequences doctrine with the felony-murder rule. While the natural and probable consequences doctrine concerns the vicarious liability of a defendant for the foreseeable crimes committed by a coparticipant, the felony-murder rule is an entirely different concept concerning the classification of crimes themselves (specifically homicide crimes).
2. The felony-murder rule has no application to this case.
Generally, in order for a homicide crime to be classified as a murder, the defendant must have committed the killing with malice. (§ 187.) But under the felony-murder rule, if a killing occurs during the commission of a designated serious felony, or during the commission of an inherently dangerous felony, the killing may be classified as either a first or second degree murder, even if the killing occurred unintentionally without malice. (§ 189; 1 Witkin, Cal. Criminal Law (4th ed. 2012) Crimes Against The Person, § 151, pp. 954-955.) And as a limitation to the felony-murder rule, if a killing occurs during the commission of an act not amounting to a felony, the crime can only be designated as an involuntary manslaughter. (§ 192, subd. (b).)
Vela claims that "an unlawful killing in the commission of a misdemeanor is involuntary manslaughter." While that is a correct statement of a limitation of the felony-murder rule, it does not limit the scope of Vela's accomplice liability under the natural and probable consequences doctrine. (See People v. Culuko (2000) 78 Cal.App.4th 307, 322 ["The natural and probable consequences doctrine operates independently of the . . . felony-murder rule"]; see also People v. Chiu (2014) 59 Cal.4th 155, 166 ["An aider and abettor's liability for murder under the natural and probable consequences doctrine operates independently of the felony-murder rule"].)
Here, the trial court instructed the jury on second degree murder with malice aforethought. Therefore, the jury necessarily found that Ochoa perpetrated the crimes of murder and attempted murder intentionally with malice aforethought and that Vela was vicariously liable as an accomplice. The felony-murder rule was simply not at issue in this case. And, as we shall explain further, the court had no obligation to instruct on the crime of involuntary manslaughter.
3. The trial court had no duty to instruct on involuntary manslaughter.
Generally, involuntary manslaughter is a lesser included offense of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813.) Unlike murder, which ordinarily requires malice (§ 187, subd. (a)), involuntary manslaughter is an unlawful killing without malice that occurs during "the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).)
A trial court's obligation in a criminal case is to "instruct on the general principles of law relevant to the issues raised by the evidence." (People v. Earp (1999) 20 Cal.4th 826, 885.) But a trial court has no sua sponte duty to instruct on a lesser included offense when there is no substantial evidence warranting the instruction. Substantial evidence in this context is evidence from which a reasonable jury could find "that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "If a killing is intentional, no involuntary manslaughter instructions may be given." (People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.)
Here, based on the evidence presented to the jury, Vela and Ochoa asked Martinez to take them "cruising" to look for rival gang members in their gang's territory. During the confrontation, Vela and Ochoa stood side-by-side, about three feet away from Herrera and Frias. Ochoa pulled out his gun and Herrera raised his hands in surrender. Ochoa then shot Herrera in the head, killing him. Further, when Ochoa and Vela returned to the car, Vela said, "Did you see those fools crying for their life?"
In this case, there was no evidence from which a rational trier of fact could have found that Ochoa killed Herrera other than intentionally. That is, there was no evidence supporting an involuntary manslaughter instruction. In sum, the trial court committed no instructional errors. B. Equal Protection Claim
When it has been pleaded and proved that a defendant in the commission of a murder or an attempted murder personally discharged a firearm causing death or great bodily injury, the court must impose an additional and consecutive sentence of 25 years to life. (§ 12022.53, subds. (a)(1) & (18), (d).) But in circumstances where the offense was committed for the benefit of a criminal street gang, the trial court must impose the enhancement not only to those defendants who personally discharge the firearm, but also as to any aiders and abettors. (§ 12022.53, subds. (d) & (e)(1).)
Here, the trial court imposed two consecutive 25-year-to-life sentences under the gang-related firearm enhancements. (§ 12022.53, subds. (d) & (e)(1).) Vela contends that the differential treatment of aiders and abettors in gang-related crimes—as opposed to aiders and abettors in other types of crimes—violates equal protection principles. We disagree.
The Constitutions of both the United States and California guarantee equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) As a threshold matter, to establish an equal protection claim, a defendant must show "that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.) Generally, criminal defendants who commit different crimes are not similarly situated for equal protection purposes. (People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.)
Assuming that a defendant is similarly situated to other defendants, the rational basis test is then applicable to an equal protection claim involving an alleged sentencing disparity. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882; see also People v. Vallejo (2013) 214 Cal.App.4th 1033, 1044 [rational basis for distinguishing those defendants who have discharged a firearm from a vehicle from those who have not]; People v. Taylor (2001) 93 Cal.App.4th 318, 322-323 [rational basis for distinguishing those defendants who are armed during an attempted robbery from those who are not].) The challenged sentencing law will not be declared unconstitutional if the classification bears a rational relationship to a legitimate state purpose. (People v. Descano (2016) 245 Cal.App.4th 175, 181-182.)
As Vela acknowledges, two other appellate courts have rejected identical equal protection challenges to the gang-related firearm enhancement in section 12022.53. (Gonzales, supra, 87 Cal.App.4th pp. 12-13; People v. Hernandez (2005) 134 Cal.App.4th 474, 480-483 (Hernandez ).) The court in Gonzales held that the additional punishment of aiders and abettors in gang-related firearm cases did not result in constitutionally infirm "disparate treatment." (Gonzales, supra, 87 Cal.App.4th at p. 15.) Similarly, the court in Hernandez concluded: "Clearly the Legislature had a rational basis for imposing a 25-year-to-life enhancement on one who aids and abets a gang- related murder in which the perpetrator uses a gun, regardless of the relationship between the aider and abettor and the perpetrator. As we previously observed, the purpose of this enhancement is to reduce through punishment and deterrence 'the serious threats posed to the citizens of California by gang members using firearms.'" (Hernandez, supra, 134 Cal.App.4th at p. 483, fn. omitted.)
We agree with the reasoning of Gonzales and Hernandez and find no merit to defendant's equal protection claim. C. Cruel and Unusual Punishment Claim
In recent years, the interpretation of the Eighth Amendment's prohibition against cruel and unusual punishments, particularly as it relates to the sentencing of juvenile offenders, has evolved. A juvenile cannot be sentenced to capital punishment for any crime. (Roper v. Simmons (2005) 543 U.S. 551, 578-579.) A juvenile cannot be sentenced to life without the possibility of parole (LWOP) for a nonhomicide offense. (Graham v. Florida (2010) 560 U.S. 48, 74-75.) A juvenile cannot be sentenced to a term of years with a parole eligibility date that falls outside the juvenile's natural life expectancy (de facto life) for a nonhomicide offense. (People v. Caballero (2012) 55 Cal.4th 262, 268.) And a juvenile cannot be sentenced to mandatory LWOP even for a homicide offense. (Miller v. Alabama (2012) ___ U.S. ___, ___ [132 S.Ct. 2455, 2463-2464.) An LWOP sentence for a juvenile who commits a homicide offense is allowable only if the court considers the "'mitigating qualities of youth'" and limits "this harshest possible penalty" to those "'rare juvenile offender[s] whose crime[s] reflect[] irreparable corruption.'" (Id. at pp. 2467, 2469.)
In 2013, in response to these transformations in constitutional law, the California Legislature passed Senate Bill No. 260, which changed parole eligibility and parole considerations for youthful offenders. (§§ 3051, 4801, subd. (c).) The current version of section 3051, subdivision (a)(1), provides that: "A youth offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense." Juveniles sentenced to an indeterminate base term of 25 years to life will receive a hearing during their 25th year of incarceration. (§ 3051, subd. (b)(3).) The youth offender parole hearing "shall provide for a meaningful opportunity to obtain release." (§ 3051, subd. (e).) The Board of Parole Hearings "shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual." (§ 3051, subd. (f)(1).)
Following the initial briefing in this case, the California Supreme Court clarified the impact of section 3051 on the sentencing of juvenile offenders to lengthy prison sentences. (Franklin, supra, 63 Cal.4th 261.) In Franklin, the court explained: "[S]ection 3051 has superseded [the 16-year-old defendant's] sentence so that notwithstanding his original term of 50 years to life, he is eligible for a 'youth offender parole hearing' during the 25th year of his sentence. Crucially, the Legislature's recent enactment also requires the Board not just to consider but to 'give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.' (§ 4801, subd. (c).)" (Id. at p. 277.)
In Franklin, the court determined that the Legislature did not intend "that the original sentences of eligible youth offenders would be vacated." (Franklin, supra, 63 Cal.4th at p. 278.) Rather, the court noted that: "The Legislature has effected this change by operation of law, with no additional resentencing procedure required." (Id. at pp. 278-279.) The court thus concluded that defendant's constitutional challenge to his sentence was moot. (Id. at p. 280.) However, the court determined that it was "not clear whether [the defendant] had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Id. at p. 284.) As such, the court remanded the matter "for the limited purpose of determining whether [the defendant] was afforded an adequate opportunity to make" the appropriate record for use in a future youth offender parole hearing. (Id. at pp. 286-287.)
Here, we have circumstances very similar to those in Franklin, supra, 63 Cal.4th 261. Vela was 16 years old at the time of his offenses and the trial court imposed a lengthy aggregate sentence (72 years to life). But in the parties' supplemental briefs, they both agree that the holding of Franklin essentially moots Vela's challenge to his sentence as a cruel and unusual de facto life sentence under the Eighth Amendment.
However, even though Vela was sentenced after the effective date of section 3051, we will remand the matter in light of the clarifications of the statute as discussed in Franklin, supra, 63 Cal.4th 261. Similar to Franklin, the trial court is directed to determine whether Vela had an adequate opportunity to make a complete record of any relevant youth-related characteristics and circumstances at the time of his offenses. If not, both parties may put on the record any relevant evidence that demonstrates his "culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Id. at p. 284.)
III
DISPOSITION
The judgment is affirmed. The case is remanded in order for the trial court to conduct a limited "Franklin hearing" as directed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.