Opinion
D071069
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFONSO VERDUZCO, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1100662) APPEAL from a judgment of the Superior Court of Riverside County, Victoria E. Cameron, Judge. Affirmed as modified. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
This multiple homicide case arises out of the conduct of a criminal street gang. Appellant Alfonso Verduzco, who was 17 years old at the time of the offenses, was convicted of two counts of voluntary manslaughter, three counts of attempted voluntary manslaughter, one count of attempted first degree murder, assault with a firearm, and street terrorism. The trial court sentenced Verduzco to a determinate sentence of 18 years 4 months plus an indeterminate sentence of 40 years to life.
Verduzco's convictions arise out of two shooting incidents in which he personally shot and wounded a rival gang member and a separate incident in which he was the passenger in a car driven by a fellow gang member. In the second incident, occupants of the car saw a second rival gang member driving a sports utility vehicle (SUV) and began chasing it and shooting at it. The driver of the SUV lost control of the vehicle, it crashed and two occupants of the SUV died.
On appeal, Verduzco challenges his voluntary manslaughter convictions on the grounds the trial court erred in giving the jury instructions on three theories of culpability: the "natural and probable consequences" of an actor's conduct, transferred intent and the "kill zone."
We find no error. Although the natural and probable consequences doctrine will no longer support a conviction for first degree murder, it may nonetheless support a conviction for the lesser included offense of voluntary manslaughter. As we explain, voluntary manslaughter may also occur as the result of transferred intent, when as appears here, a shooter intends to kill one victim and his conduct results in the death of others. On this record, the trial court did not err in instructing on both theories. In addition, as we discuss, the kill zone theory may also be used to find the malice required for voluntary manslaughter. Thus, the trial court did not err in giving the jury a kill zone instruction or in responding in the affirmative to the jury's question as to whether the kill zone theory applied to voluntary manslaughter.
The parties agree that the trial court erred in sentencing Verduzco, and we modify his sentence to conform with their agreement.
California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to the victims in this case by their first names and last initials, and thereafter by first names only. Our use of first names is not intended as a sign of disrespect. --------
In March 2011, Verduzco was a member of a criminal street gang. Jesus was a member of a rival gang.
Previously, Jesus shot and stabbed members of a gang allied with Verduzco's gang; Jesus also fired a semiautomatic weapon at Verduzco, a member of Verduzco's gang, and a female companion. At the time of the shooting, Jesus told them, "Any time I see you, I'm going to shoot at you."
On the evening of March 17, 2011, Verduzco got into a car with four other gang members. Shortly thereafter they saw Jesus sitting by himself in an alley, talking on the phone. The car stopped near Jesus, Verduzco got out of the car, fired one shot at Jesus, his gun jammed and Verduzco got back in the car. The bullet struck Jesus in the back of the thigh. Jesus called his cousin, who took him to a hospital.
B. Oscar B.'s Shooting
Oscar was a member of a second rival gang. Shortly after Jesus's shooting, Oscar, his girlfriend, their infant son, Oscar's mother and a family friend were driving in Oscar's SUV in the vicinity of Jesus's shooting. Verduzco and his companions saw Oscar's SUV and identified Oscar as a rival gang member; Oscar saw his rivals, and flashed a gang sign at them. Thadius Holland, the driver of the car Verduzco was in, began chasing Oscar's SUV and fired shots at it while another occupant of the car held the steering wheel.
After Holland fired shots at the SUV, Verduzco leaned out of a window, waived a gun at the SUV and shouted out references to his gang and an allied gang. Shortly thereafter, Oscar lost control of the SUV and it hit a traffic signal post. Oscar's mother, Andrea C., and their family friend, Linda D., were killed in the collision.
C. Defense Case
Verduzco testified on his own behalf. Verduzco was 17 years old at the time of the shooting and had joined the gang when he was 15 or 16. Initially, Verduzco thought that being in a gang meant drinking, smoking marijuana, and playing music. However, within six months, other gang members put pressure on Verduzco to "put in work," in the form of violent acts which would benefit the gang. Verduzco was unwilling to do so; however, he became frightened because he believed the other gang members would kill him unless he participated in the violence they demanded of him.
Verduzco admitted he shot at Jesus, but testified he not did intend to hit him. With respect to Oscar's shooting, Verduzco testified that although he was told by the other gang members to shoot at Oscar, he refused and instead the driver shot at the SUV. Verduzco admitted that before the SUV hit the light pole, he stuck his gun out the window and shouted out the names of his gang and an allied gang.
D. Trial
Verduzco was charged in an nine-count information with two counts of murder for the deaths of Andrea and Linda (counts 1 & 2), three counts of attempted murder of the surviving occupants of the SUV (counts 3, 4 & 5), one count of the attempted murder of Jesus (count 6); one count of discharging a firearm at an occupied vehicle (count 7), one count of assault on Oscar (count 8), and one count of participating in a criminal street gang (count 9).
The jury acquitted Verduzco on count 7, the allegation that he discharged a firearm at an occupied vehicle. The jury also found not true the gun use enhancements alleged with respect to the two homicides and three attempted homicide counts related to the attack on Oscar's SUV (counts 1-5).
As we noted at the outset, the jury nonetheless found Verduzco guilty of the voluntary manslaughter of Andrea and Linda (counts 1 & 2); the jury also found Verduzco guilty of the attempted voluntary manslaughter of the three surviving occupants of the SUV (counts 3, 4 & 5).
The jury found Verduzco guilty of the attempted murder of Jesus (count 6), assault on Oscar (count 8), and gang participation (count 9). With respect to the assault on Oscar, the jury found that he personally used a firearm.
With respect to all the convictions, other than the substantive gang participation conviction itself, the jury found Verduzco acted for the benefit of a criminal street gang.
DISCUSSION
I
A. Aiding and Abetting/Natural and Probable Consequences/Transferred Intent Instructions
The jury was instructed on aiding and abetting, the natural and probable consequences doctrine, and transferred intent. The aiding and abetting instructions provided in pertinent part: "A person may be guilty of a crime in two ways: [¶] One, he or she may have directly committed the crime. I will call that person the perpetrator. [¶] Two, he or she may have aided and abetted a perpetrator who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." The jury was instructed on the natural and probable consequences doctrine with a version of CALCRIM No. 402, which in pertinent part stated: "Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
"To prove that the defendant is guilty of murder, the People must prove that:
"[1.] The defendant is guilty of either shooting at the occupied vehicle and/or assault with a firearm;
"[2.] During the commission of either crime a co-participant committed the crime of murder; and
"[3.] [U]nder all of the circumstances, a reasonable person in the defendant's position would have known that the commission of murder was a natural and probable consequence of shooting at an occupied vehicle or assault with a firearm.
"A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the crimes of shooting at an occupied vehicle or assault with a firearm, then the commission of murder was not a natural and probable consequence of shooting at an occupied vehicle or assault with a firearm.
"To decide whether the crime of murder was committed, please refer to the separate instructions that I will give you on that crime.
"The People allege that the defendant originally intended to aid and abet the commission of either shooting at an occupied vehicle and/or assault with a firearm. [¶] The defendant is guilty of murder if the People have proved that the defendant aided and abetted either shooting at an occupied vehicle or assault with a firearm and that murder was the natural and probable consequence of either the shooting at an occupied vehicle or the assault with a firearm. [¶] However, you do not need to agree on which of these two crimes defendant aided and abetted."
With respect to transferred intent, the jury was given a version of CALCRIM No. 402 that stated: "If the defendant intended to kill one person, but by mistake or accident killed someone else, and instead, then, the crime, if any, is the same as if the intended person had been killed."
B. No prejudicial error: Natural and Probable Consequences
The court in People v. Chiu (2014) 59 Cal.4th 155, 165-166, 168 (Chiu), recently set forth the principles governing use of the natural and probable consequences theory in determining aider and abettor culpability: "Aider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature. (People v. Garrison (1989) 47 Cal.3d 746, 778 [accomplice liability is vicarious]; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 ['The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious.']; People v. Brigham [(1989)] 216 Cal.App.3d [1039,] 1054 [aider and abettor is derivatively liable for reasonably foreseeable consequence of principal's criminal act knowingly aided and abetted].) 'By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.' (People v. Canizalez (2011) 197 Cal.App.4th 832, 852, italics added.)
"The natural and probable consequences doctrine is based on the principle that liability extends to reach 'the actual, rather than the planned or "intended" crime, committed on the policy [that] . . . aiders and abettors should be responsible for the criminal harms they have naturally, probably, and foreseeably put in motion.' [Citations.] We have never held that the application of the natural and probable consequences doctrine depends on the foreseeability of every element of the nontarget offense. [Fn. omitted.] Rather, in the context of murder under the natural and probable consequences doctrine, cases have focused on the reasonable foreseeability of the actual resulting harm or the criminal act that caused that harm. (See, e.g., [People v.] Medina [(2009)] 46 Cal.4th [913,] 922-923, 928 ['shooting' or 'escalation of the confrontation to a deadly level' was a foreseeable consequence of simple assault]; People v. Ayala (2010) 181 Cal.App.4th 1440, 1450 ['fatal shooting' was a natural and probable consequence of aiding and abetting an assault with a deadly weapon during a gang confrontation]; People v. Gonzales (2001) 87 Cal.App.4th 1, 10 ['fatal shooting' was a natural and probable consequence of a gang fight]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 ['shooting' was a natural and probable consequence of assault and 'escalation of this confrontation to a deadly level was much closer to inevitable than it was to unforeseeable. . . .']; People v. Rogers (1985) 172 Cal.App.3d 502, 515 [' "the natural and probable consequences of any armed robbery are that someone may be hurt, someone may be shot, [an] innocent bystander may be hurt . . . ." '].)
"In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for punishing such aiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder. (People v. Knoller (2007) 41 Cal.4th 139, 143, 151-152 [second degree murder is the intentional killing without premeditation and deliberation or an unlawful killing proximately caused by an intentional act, the natural consequences of which are dangerous to life, performed with knowledge of the danger and with conscious disregard for human life].) It is also consistent with reasonable concepts of culpability. Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator's state of mind in committing it. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [inquiry is strictly objective and does not depend on defendant's subjective state of mind].) It only requires that under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (Ibid.)" (Chiu, supra, at pp. 164-166.)
In Chiu, the court held that notwithstanding these principles, the natural and probable consequences doctrine could not be used to impose culpability for first degree murder on an aider and abettor. (Chiu, supra, 59 Cal.4th at pp. 165-166.) The court found that the public policy of deterring criminal behavior is fully served when an aider and abettor is responsible for second degree murder, but that because first degree murder depends on the very specific, elevated and subjective intentions of the direct perpetrator, the connection between the abettor's culpability and the perpetrators' intentions is too attenuated to warrant the far more severe punishment the law reserves for first degree murder. (Ibid.) In imposing this limitation on use of the natural and probable consequences theory, the court stated: "Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator's state of mind in committing it. [Citation.] It only requires that under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." (Ibid.)
Arguably, under Chiu, the trial court erred when, in instructing on the natural and probable consequences doctrine, it did not expressly limit application of the doctrine to no greater crime than second degree murder. However, Verduzco was not prejudiced by any such error because he was only found guilty of voluntary manslaughter. The court in Chiu made it clear that the doctrine will support a conviction for the lesser included offense of second degree murder (see Chiu, supra, 59 Cal.4th at pp. 165-166); thus, it will also support a conviction for the even lesser included offense of voluntary manslaughter.
As the court's discussion in Chiu also makes clear, giving an aiding and abetting instruction in conjunction with an instruction on natural and probable consequences was otherwise appropriate here. On this record, the jury could have determined Verduzco aided and abetted Holland in firing a gun at the occupants of Oscar's SUV; it also could have determined that the death of one or more of the occupants of the SUV was the natural and probable consequence of Holland's conduct in firing a gun at the vehicle, making both himself and Verduzco guilty of the manslaughter of the victims. (See Chiu, supra, 59 Cal.4th at 165-166.) Because the record fully supported this theory, the trial court did not err in providing it to the jury.
In reaching this conclusion, we obviously reject Verduzco's contention that the natural and probable consequences theory was not available because his voluntary manslaughter conviction required that he have the specific intent to kill either Oscar or the victim. As the court in Chiu made clear, the intent to kill or conscious disregard for life which is needed for murder or voluntary manslaughter, may be established by way of a defendant's intention to aid and abet an assaultive crime committed by a direct perpetrator where the natural and probable consequence of the target crime is a homicide. (See Chiu, supra, 59 Cal.4th at pp. 165-166.)
II
The trial court did not err in providing, in addition, to the natural and probable consequences instruction, an instruction on transferred intent. " 'It has been long accepted that if A shoots at B, intending to kill B, but instead the bullet strikes C, then A has committed a criminal act as to C. In such instance, the "malice follows the blow" and the criminal intent of A to harm B is transferred to C.' " (People v. Matthews (1979) 91 Cal.App.3d 1018, 1023.) Application of the transferred intent theory here was of course supported by evidence that Holland shot at Oscar's SUV. If, as they might have found, the jury determined Holland intended to kill Oscar, that malicious intent could be "transferred" to the deceased victims of his shooting. (People v. Sanchez (2001) 26 Cal.4th 834, 850-851.)
If the jury found that Verduzco was an aider and abettor of Holland in his attempt to kill Oscar, Verduzco could also be held culpable under the transferred intent doctrine. (See People v. Vasquez (2016) 246 Cal.App.4th 1019, 1025; In re Brigham (2016) 3 Cal.App.5th 318, 329.) There was no error on the part of the trial court in giving the jury two different but valid theories upon which they could find Verduzco guilty of voluntary manslaughter: either by finding that Verduzco aided and abetted Holland in assaulting Oscar and was responsible for the deaths of Andrea and Linda under the natural and probable consequences theory or because he aided and abetted Holland's attempt to kill Oscar and was responsible under a theory of transferred intent. (See, e.g., People v. Johnson (1993) 6 Cal.4th 1, 38.)
III
As part of its charge to the jury, the trial court instructed the jury pursuant to CALCRIM No. 600 [Attempted Murder] in part as follows:
"A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone." [¶] In order to convict the defendant of the attempted murder of Maria D. as charged in Count 4, and Angel B. charged in Count 5 on a concurrent intent theory, the People must prove that the defendant not only intended to kill Oscar B., but also intended to kill Maria D. and Angel B., or he intended to kill everyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill Maria D., Angel B., or intended to kill Oscar B. by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Maria D. and Angel B."
During deliberations, the jury sent the court a note asking: "(1) Can you clarify and define 'kill zone' and 'intent' as written in CALCRIM No. 600 (Attempted Murder) (2) Does the 'kill zone' definition apply to [the] voluntary manslaughter charge (CALCRIM No. 570)?" After discussing the question with counsel, the court then provided the jury with a written answer which stated: "(1) The defendant must have had the specific intent to kill. For the definition [of] 'kill zone' please refer to CALCRIM No. 600. (2) The 'kill zone' definition applies to voluntary manslaughter."
The kill zone theory was adopted by the California Supreme Court in People v. Bland (2002) 28 Cal.4th 313 (Bland). In Bland the defendant shot and killed a rival gang member; in the course of doing so he shot and wounded two nongang members. He was convicted of murdering his intended victim and attempting to murder the other victims. The Supreme Court affirmed all the convictions. In affirming the attempted murder convictions, the Supreme Court acknowledged that the theory of transferred intent does not apply to the crime of attempted murder: "[t]o be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Id. at p. 328.) However, the Supreme Court nonetheless found that on the record presented, the defendant's attempted murder conviction could nonetheless be upheld under the "kill zone" theory: "the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within . . . 'kill zone.' 'The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, . . . consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death . . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.' " (Bland, supra, 28 Cal.4th at pp. 329-330.)
Contrary to Verduzco's argument the trial court did not err in advising the jury the kill zone theory applied to voluntary manslaughter. The court in People v. Bryant (2013) 56 Cal.4th 959, 968, held that voluntary manslaughter requires: " 'either intent to kill or a conscious disregard for life.' " When a defendant intends to kill, but does so in the heat of passion or in the mistaken belief that his life is in danger, the malice that would otherwise arise is mitigated and the crime is reduced to manslaughter. (Ibid.) Because a manslaughter conviction may be based on an intentional killing, the trial court did not err in advising the jury the theory of intentional killing set forth in the kill zone instruction applies to voluntary manslaughter as well as murder. Here, the jury could have found that Holland was attempting to kill Oscar by killing everyone in the SUV, but in light of his fear or passion, he and Verduzco were only liable for manslaughter and attempted manslaughter.
IV
As to count 8 (assault with a deadly weapon), the trial court sentenced appellant to a base term of three years. The court imposed consecutive terms of five years for the gang enhancement and four years for the gun use enhancement. The court then stayed the entire sentence under section 654. The minute order reflects the same sentence. The abstract of judgment does not mention the gun use enhancement, but states that sentence on the underlying count and on the gang enhancement were stayed. The parties agree that we should direct the trial court to correct the minute order to conform to the abstract of judgment. (See People v. Le (2015) 61 Cal.4th 416, 429 [§ 1170.1, subd. (f) precludes a trial court from imposing both a firearm enhancement under § 12022.5, subd. (a)(l), and a serious felony gang enhancement under § 186.22, subd. (b)(1)(B) in connection with a single offense, when the offense is a serious felony under § 186.22, subd. (b)(1)(B) and involves the use of a firearm].)
As to count 6, attempted premeditated murder, the trial court sentenced appellant to a term of 15-years to life. Verduzco contends that his sentence should be life with a minimum parole eligibility date of 15 years. The People agree. Section 186.22, subdivision (b)(5) provides: "Except as [otherwise] provided . . . , 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." Attempted premeditated murder is one such crime. (§ 664, subd. (a).) When the defendant commits a violent felony subjecting him to life imprisonment, "section 186.22, [subdivision] (b)(5) applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) Accordingly, the abstract of judgment should be amended to reflect that appellant's sentence on count 6 is life with a minimum parole eligibility date of 15 years. (See People v. Smith (2001) 24 Cal.4th 849, 854 [unauthorized sentence may be corrected even when raised for first time on appeal].)
DISPOSITION
The trial court is instructed to amend the minute order to strike the gun use enhancement accompanying count 8, and to amend the abstract of judgment to reflect a sentence on count 6 of life with a minimum parole eligibility of 15 years and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. NARES, J.