Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF093894C
RAYE, J.Defendant Louis Votino, an aider and abettor to robbery and assault on four police officers, asks us to impose new limits on the natural and probable consequences theory of liability. He claims instructional error and insufficiency of the evidence based primarily on his assertion that the robbery, identified as the predicate offense, was complete nearly nine hours before the pursuing police officers were assaulted by the perpetrator of the robbery and another passenger in the getaway truck. He also complains that the trial court erroneously limited his impeachment of the sole percipient witness to identify him.
Neither precedent nor policy supports the artificial limitation on liability this aider and abettor seeks. We remain comfortable with the fact-specific inquiry demanded by our Supreme Court and, on this record, find there is more than sufficient evidence to support the jury verdict as to four counts of assault on the police officers. We also conclude the trial court did not abuse its discretion or transgress defendant’s constitutional right to due process by imposing some reasonable limits on cross-examination. We affirm.
FACTS
At 6:30 a.m. on November 7, 2004, James Brookes left his white pickup truck running as he ran back into his house to retrieve his wallet. Brookes had orange safety vests, like those used by Caltrans workers, and plastic gloves in his truck at the time. His neighbor’s security video camera captured the theft of the truck. The videotape showed a van driving by the Brookeses’ house moments before the theft and then returning and driving away in front of Brookes’s truck, which was driven away at high speed. The van’s front left fender was a different color from the rest of the van.
Three weeks before the theft, the van had been sold to a person with a name nearly identical to that of defendant’s wife. In April 2005 a van with a front left fender a different color from the rest of the van was parked outside the home of defendant’s mother-in-law.
On November 8, 2004, a man robbed a Shell gas station clerk at gunpoint, took about $200, and left in a white pickup truck driven by another person. The clerk was unable to identify either her assailant or the driver. She testified the robber was short and heavyset, wore a sweatshirt with a red hood and a baseball cap underneath, and had a red and white mask covering his face.
At about 8:30 a.m. on November 9, 2004, a chunky, short Mexican male wearing a dark sweater with a white stripe, an orange construction vest with “neon” stripes, a dark baseball hat, white tennis shoes, white gloves, and a red bandana covering his face pointed a gun at a Valero gas station clerk and demanded money. The man grabbed a cash drawer containing about $81 in cash, left the store, and climbed into the passenger side of a white pickup. The clerk was unable to positively identify either the robber or the driver.
Marcus Hopkins, an off-duty employee, happened to be at the Valero station during the robbery and was the only eyewitness to identify defendant as a participant in any of the charged offenses. His credibility was hotly contested. Hopkins could not see the robber’s face because the robber was wearing a bandana and a hat. He followed him out of the store, saw him get into a white truck, and then got into his own truck and chased the robbers. As the driver of the white truck tried to get away, he saw a gun hanging out the passenger window and then heard two “pops.” The chase ended when Hopkins hit a divider.
Hopkins testified he got a good look at the driver, whom he identified as defendant. A week after the robbery, he picked defendant out of one of two photo lineups. He further testified that he was positive defendant was the driver, and if the police reported he had identified defendant as the passenger, they were mistaken. The detective who showed Hopkins the photo lineups, however, testified that Hopkins identified defendant as the robber.
At roll call on November 9, 2004, Stockton police officers were informed that two male suspects using a white pickup and a firearm had robbed two gas stations. The officers also were shown photos from the Valero surveillance video. At about 5:40 p.m., while on patrol, two officers saw a truck they believed matched the vehicle description from the robberies and called for backup. A high-speed chase ensued. One of the passengers started shooting at the police officers. As the driver tried to negotiate a turn at 70 miles per hour, he lost control and collided with a telephone pole.
Three men ran from the truck, the officers shooting at them. Within minutes, an officer spotted defendant walking down the street approximately one block east of the site of the crash. He was wearing black sweatpants, a white T-shirt, and white tennis shoes. He was sweating profusely and appeared nervous. A gunshot residue test was conducted on defendant, and several consistent particles of gunshot residue were found on both of his hands. Even though none of the officers involved in the chase was able to positively identify him, defendant was transported to the police department for interrogation. Codefendant Jose Balverde was located and transported to the hospital for treatment of a gunshot wound. A third suspect, Aaron Woods, was interviewed the following day at a hospital emergency room, where he went for treatment of a gunshot wound.
After spending the night at the police department, defendant was interrogated early the following day. He claimed he had been asleep at the time of the robbery, and he denied knowing codefendant Jose Balverde or riding in a white truck. He insisted he had driven a minivan to McKinley Park looking for mechanics to help him with another disabled car. He parked the van and began walking around in search of help. Not finding anyone, he returned to the van, only to discover someone had broken into it and it would not start. He left the park on foot to look for his friend Jerry, who lived in the neighborhood. Shortly after hearing gunshots, he was stopped by the police.
Defendant claimed he was wearing only a T-shirt even though it was cold outside because he had not planned to be stranded in the park and thought he had a sweatshirt in the van. He denied that any of the clothing found in the area was his. The police officers could not find the van in the vicinity of McKinley Park. Defendant suggested that the van had been stolen.
The prosecution argued that Balverde was the robber. Woods pled guilty to one count of assault with a firearm on a police officer and admitted to personally using a firearm within the meaning of Penal Code section 12022.5, subdivision (a). The prosecution did not claim that he was involved in the gas station robberies. Balverde and defendant were tried jointly.
A jury convicted defendant of four counts of assault with a firearm on police officers (Pen. Code, § 245, subd. (d)(1)), one count of unlawful taking or driving of a motor vehicle (Veh. Code, § 10851, subd. (a)), one count of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)), one count of possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)), one count of second degree robbery of the Valero gas station (Pen. Code, § 211), and one count of assault with a firearm on the person of another (Pen. Code, § 245, subd. (a)(2)). Balverde also was found guilty of all counts. The court found defendant’s prior voluntary manslaughter conviction to be true. He was sentenced to state prison for 22 years 4 months. Defendant appeals.
DISCUSSION
I
Much has been written on the thorny questions that arise when imposing vicarious liability for criminal conduct. Here we again recite the principles involved when an aider and abettor is found guilty of crimes perpetrated by another. Anyone who knowingly aids and abets criminal conduct is guilty of not only the intended crime, but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. (People v. Prettyman (1996) 14 Cal.4th 248, 260-262 (Prettyman).)
The Supreme Court acknowledges that “[t]o apply the ‘natural and probable consequences’ doctrine to aiders and abettors is not an easy task. The jury must decide whether the defendant (1) with knowledge of the confederate’s unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated.” (Prettyman, supra, 14 Cal.4th at p. 267.)
Here we must address application of the fifth criterion; that is, whether the assaults on the police officers were a natural and probable consequence of the Valero robbery. The jury was instructed on, and the prosecutor argued, this particular theory of liability. Defendant insists the trial court committed reversible error by instructing the jury on the natural and probable consequences doctrine in this context.
“For a criminal act to be a ‘reasonably foreseeable’ or a ‘natural and probable’ consequence of another criminal design it is not necessary that the collateral act be specifically planned or agreed upon, nor even that it be substantially certain to result from the commission of the planned act.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 530 (Nguyen).) “The factual determination whether a crime committed by the perpetrator was a reasonably foreseeable consequence of the crime or crimes originally contemplated is not founded on the aider and abettor’s subjective view of what might occur. Rather, liability is based on an ‘objective analysis of causation’; i.e., whether a reasonable person under like circumstances would recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted.” (People v. Woods (1992) 8 Cal.App.4th 1570, 1587 (Woods).) “[I]n determining whether a collateral criminal offense was reasonably foreseeable to a participant in a criminal endeavor, consideration is not restricted to the circumstances prevailing prior to or at the commencement of the endeavor, but must include all of the circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of the crime.” (Nguyen, supra, 21 Cal.App.4th at p. 532.)
It is true, as defendant argues, that the target crime and the charged offense must be closely connected. (Prettyman, supra, 14 Cal.4th at p. 269; People v. Montes (1999) 74 Cal.App.4th 1050, 1055.) But defendant insists on more, urging us to establish a new endpoint to an aider and abettor’s liability for the natural and probable consequences of the target crime. That endpoint, in defendant’s view, should occur when the target crime is complete.
Defendant acknowledges he can find no authority for his novel proposition. Nevertheless, he asserts that application of the natural and probable consequences theory to a situation where the robbery is complete before the commission of the charged offense would be an unwarranted extension of the doctrine. It is defendant who seeks to change the governing legal principles. The question is not the narrow one posed by defendant as to whether the target crime is complete, but the broader question framed by the Supreme Court as to whether the charged offense is a reasonably foreseeable consequence of the target offense. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108.) Neither his robbery nor felony murder cases are apt here because they do not address the dispositive issue of reasonable foreseeability. We agree with the Attorney General that liability depends not on whether the target offense is complete, but on whether the charged offense was a reasonably foreseeable consequence of the commission of the target offense.
To focus on the factual issue of foreseeability presented to the jury is not to overlook the complexity or the gravity of the vicarious liability tolerated by the natural and probable consequences doctrine. There are indeed limits on an aider and abettor’s liability for the crimes perpetrated by his confederates, and the recent case of People v. Leon (2008) 161 Cal.App.4th 149 (Leon) provides a fitting example.
In Leon, the defendant, a documented gang member, broke the window of a car parked in a rival gang’s territory. Witnesses observed the defendant and another gang member “messing” with another car and threatened to call the police. The second gang member looked at the witnesses and fired a gun in the air. A gang expert testified that theft and witness intimidation benefit criminal street gangs. (Leon, supra, 161 Cal.App.4th at pp. 153-155.) The defendant was charged with and convicted of witness intimidation, among other crimes, as a natural and probable consequence of at least one of the targeted offenses: burglary, possession of a concealed firearm by an active participant in a criminal street gang, or carrying of a loaded firearm by an active participant in a criminal street gang. (Id. at pp. 159-160.)
The court rejected the prosecution’s expansive notion of the natural and probable consequences doctrine. “The People have cited no case, and we are aware of none, in which a court has concluded that the crime of witness intimidation was the natural and probable consequence of either vehicle burglary or illegal possession of a weapon. There is not ‘a close connection’ between any of the target crimes Leon aided and abetted, and Rodriguez’s commission of witness intimidation. [Citation.] In considering ‘all of the circumstances surrounding the incident’ [citation], the fact that the crimes were gang related and that they were committed in a rival gang’s territory clearly increased the possibility that violence would occur. However, witness intimidation cannot be deemed a natural and probable consequence of any of the target offenses. [¶] We conclude that there is insufficient evidence that Leon aided and abetted a crime as to which witness intimidation was a natural and probable consequence.” (Leon, supra, 161 Cal.App.4th at p. 161.)
Similarly, defendant asserts there is insufficient evidence that the assaults on the police officers were a natural and probable consequence of the robbery of a gas station clerk several hours earlier. As in Leon, he argues the two crimes were not closely connected. The problem in Leon, however, was not, as here, the passage of time, but the fact that it was not reasonably foreseeable that a confederate would intimidate a witness in the immediate aftermath of a burglary or weapons crime. Defendant raises the more difficult question whether assaults on police officers many hours later were foreseeable, particularly when a third party who had not been involved in the robbery joined in.
Defendant would have us resolve this difficult dilemma as a matter of law. But the courts consistently hold that the question is a factual one to be resolved by the jury. (People v. Cummins (2005) 127 Cal.App.4th 667, 677; Woods, supra, 8 Cal.App.4th at p. 1594; People v. Jones (1989) 207 Cal.App.3d 1090, 1095.) Certainly, there is a point in time at which the connection between the target crime and the charged offense is too attenuated to hold an aider and abettor vicariously liable for the actions of his confederates. The cases, however, counsel us to take account of all the circumstances surrounding the commission of both the target and charged offenses. (Nguyen, supra, 21 Cal.App.4th at p. 532; Leon, supra, 161 Cal.App.4th at p. 161.) The jury is at liberty to assess those circumstances and to make a factual determination whether the charged offense was a natural and probable consequence of the commission of the target offense, and must factor into that calculus the timing of the two offenses. Nevertheless, the inquiry is case specific and fact intensive.
Thus, although defendant’s argument to impose some clear end of liability is alluring, he ultimately is stymied, not by the limits of the natural and probable consequences doctrine, but by the limits of appellate review. The natural and probable consequences doctrine has limits, those circumscribed by the reasonable foreseeability test, but contrary to defendant’s hopes, the jury, not the Court of Appeal, makes the factual determination and we must affirm the jury verdict if there is substantial evidence, in light of the whole record, to sustain it. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discern sufficient evidence of foreseeability in the circumstances recounted in the whole record, despite the time lag between the robbery and the assaults.
II
Defendant claims a case of mistaken identification, insisting he was not involved in any of the charged offenses. He told investigating officers he was home and in bed during the Valero robbery. Despite the fact he was picked up within minutes of, and but a short distance from, the crash and assaults on the police officers, nervous, sweaty, and with gunshot residue on his hands, he explained he was in search of a mechanic or a friend to repair his disabled van. A van, one officer testified, that could not be found.
Even if we discount Hopkins’s identification, the prosecution presented to the jury compelling circumstantial evidence that defendant was involved in a three-day crime spree. The jury was free to accept the prosecution’s theory that defendant was involved in the initial theft of Brookes’s truck, since the same kind of van registered apparently to defendant’s wife and parked in front of his mother-in-law’s residence with the same discolored fender was videotaped driving by the Brookeses’ home before the theft and following the truck after the theft. Thus, there was strong circumstantial evidence defendant was involved with his confederate Balverde from the time they stole the truck that was used to commit the armed robberies at the gas stations on the following two days.
The perpetrator of those robberies accosted the gas station clerks at gunpoint and escaped in the same white truck. Was it reasonably foreseeable to the aider and abettor of an armed robbery that his confederate would use his weapon against police officers to avoid arrest as they cruised through town later in the day in their same stolen truck? We believe that under all of these circumstances the jury justifiably concluded that defendant, the aider and abettor, could have reasonably foreseen that Balverde, the armed robber, would assault pursuing police officers alerted by the description of the stolen white truck. The fact that the proceeds of the earlier robbery had been spent or deposited elsewhere does not exonerate defendant by ending the natural and probable consequences of continuing to travel around in the same vehicle he and his confederate used to rob the Valero station that very same day.
But enter Aaron Woods. Defendant argues that because Woods was not involved in the earlier robbery, the natural and probable consequences doctrine simply does not apply. He points out that Woods pled guilty to one count of assault on a police officer and admitted using a firearm. Since Woods was a perpetrator of the assault but not the robbery, defendant contends he cannot be held vicariously liable under the natural and probable consequences theory.
If those were the only facts, we would agree with defendant. But he ignores the pivotal fact that Balverde was charged with each of the assaults on the police officers and the jury found that he personally and intentionally discharged a firearm in the commission of each assault. As a result, he too was a perpetrator, both of the assaults and of the robbery. It was Balverde, not Woods, who was jointly tried with defendant, and Balverde, not Woods, was described in the jury instructions pertaining to the four counts of assault. Given the jury findings as to Balverde, Woods is a red herring, and there is substantial evidence to support the jury’s findings that defendant was guilty of assault on the police officers as a natural and probable consequence of the earlier robbery.
III
A defendant’s right to confront witnesses who testify against him with searing and comprehensive cross-examination is one of the fundamental hallmarks of our criminal justice system, and therefore we must scrupulously examine a criminal defendant’s allegation that his right to cross-examination has been restricted, circumscribed, or compromised. (Maryland v. Craig (1990) 497 U.S. 836, 846 [111 L.Ed.2d 666].) We confront such an allegation here.
Defendant complains that the trial court improperly restricted his cross-examination of the percipient witness, Marcus Hopkins. Hopkins was the Valero employee who witnessed the robbery and pursued the assailants as they sped off with their loot in the stolen white truck. Having reviewed the transcript of his testimony, it goes without saying that his credibility was thoroughly tested and the flaws in his identification testimony were exposed. Nevertheless, the question remains whether the trial court improperly limited impeachment by refusing to allow evidence of a series of misdemeanors and prior testimony in other cases. We conclude there was no abuse of discretion.
Defendant sought to impeach Hopkins with misdemeanors he asserted involved moral turpitude, including a 1990 conviction for theft, 1994 convictions for false imprisonment and corporal injury on a cohabitant, a 1995 conviction for petty theft, a 1996 conviction for escape, and a 1997 conviction for criminal threats, as well as 2001 felony convictions for stalking, criminal threats, possession of a weapon, and unlawful sexual intercourse. The court exercised its discretion to disallow investigation into the facts surrounding the commission of the misdemeanors and limited defendant to examination of the conduct involving the commission of the two more recent felonies, just as it had limited the prosecution to only two felonies to impeach codefendant Balverde. The court also allowed defendant to inquire about several other cases in which Hopkins had testified and to ask whether he had ever made a mistaken identification. The court would not allow defendant, however, to call additional witnesses who would challenge the identifications and thereby devolve into a collateral trial within a trial.
“‘“[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed,... to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.” [Citation.]’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 793.) “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674].)
Defendant highlights the importance of Hopkins’s testimony, suggesting that unabated impeachment was particularly necessary because he was the sole witness to identify him. Such a key prosecution witness, in defendant’s view, must be subject to rigorous cross-examination. We agree on the importance of cross-examination, perhaps more so when a sole eyewitness is involved, but we disagree that meaningful cross-examination was foreclosed here.
Hopkins’s powers of observation were tested throughout his examination, not to mention his credibility and his memory. Defense counsel deftly exposed inconsistencies in his testimony, challenged his motivation for testifying, and asked penetrating questions about his testimony in other cases. He examined him about his prior felony convictions. Thus, we cannot say the court abused its discretion by disallowing redundant examination about his old misdemeanor convictions. The jury was well aware Hopkins, a convicted felon, had been inconsistent in his descriptions and identifications. To add a number of misdemeanor convictions would not have changed the impression or further degraded his veracity. Indeed, the trial court could reasonably conclude that the detour into collateral matters would not be sufficiently probative to justify the undue length of trial time.
Nor did the trial court abuse its discretion by limiting the examination of Hopkins regarding his testimony in other cases. Again, the trial court allowed defense counsel considerable leeway to explore Hopkins’s prior testimony. Counsel was allowed to ask whether Hopkins had positively identified the defendants in several cases. We cannot squabble with the court’s reasonable curtailment of bringing in additional witnesses whose own identifications would be subject to challenge. Given that these matters concerned other trials, at least one of which dated back to 1990, we simply cannot conclude the trial court abused its discretion by carefully and narrowly circumscribing Hopkins’s cross-examination.
IV
The Attorney General concedes that a defendant cannot be convicted of both stealing and receiving the same property. (People v. Garza (2005) 35 Cal.4th 866.) We reverse defendant’s conviction on count 6 for receiving stolen property as suggested by the Attorney General because he was also convicted of stealing the truck in count 5.
DISPOSITION
The judgment is reversed as to count 6 and affirmed in all other respects.
We concur: NICHOLSON, Acting P. J., ROBIE, J.