Opinion
H035895
08-17-2012
THE PEOPLE, Plaintiff and Respondent, v. GREGORY EDWARD WANG, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC897349)
A jury convicted defendant Gregory Edward Wang, Jr., of first degree murder. It also found true a special-circumstance allegation for purposes of a life-without-parole sentence (committed murder while an active participant in a criminal street gang and murder was carried out to further activities of the street gang--Pen. Code, § 190.2, subd. (a)(22)). It also found true a gang allegation for purposes of a 10-year sentence enhancement (committed offense for the benefit of, direction of, and in association with a criminal street gang--§ 186.22, subd. (b)(1)(C)) and a firearm use allegation for purposes of a consecutive 10-year sentence enhancement (was a principal in a gang felony in which a principal used a gun--former § 12022.53, subds. (b) & (e)(1)). And finally it found true a deadly-weapon allegation for purposes of a one-year sentence enhancement (personally used a deadly weapon--§ 12022, subd. (b)(1)). The trial court sentenced defendant to life without parole consecutive to 11 years. It stayed the 10-year sentence enhancement for the gang-allegation finding and imposed a $10,000 restitution fine (§ 1202.4) and a corresponding, suspended parole-revocation fine (§ 1202.45).
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that the trial court erred (1) by overruling his objections to the admission in evidence of his statements to the police, (2) in instructing the jury in the language of CALCRIM No. 625 (effect of voluntary intoxication), (3) by failing to instruct the jury that an intentional killing for purposes of the special circumstance allegation does not automatically flow from a murder finding based on an aiding and abetting theory, and (4) by imposing the 10-year gang enhancement. He interweaves claims of ineffective assistance of counsel in the event certain contentions are procedurally barred. We affirm the judgment.
BACKGROUND
Benny Hernandez belonged to San Jose Unidos (SJU), a subset of the Norteño criminal street gang. On February 20, 2008, he and Christopher Cabrera--an SJU associate--were eating at a McDonald's restaurant when two men came into the restaurant and starting fighting with them. During the fight, one of the men pulled out a knife. Cabrera then stopped fighting, and Hernandez was stabbed while combating the two men. While in the hospital, Hernandez told fellow gang member Anthony Garcia that he was angry about being stabbed and Cabrera should have done something.
On February 22, 2008, SJU member Mathew Cruz hosted an SJU meeting at his home to discuss disciplining Cabrera for not backing up Hernandez at McDonald's. Cruz, Hernandez, Garcia, Diego Montantes, and defendant were in the home. All but Hernandez agreed to beat up Cabrera. The plan was that all would participate in a group beating. But Hernandez expressed that he wanted Cabrera dead. He said that he would pick up Cabrera on February 23, and instructed Montantes to steal a car.
On February 23, 2008, Cruz hosted a party attended by Hernandez, Garcia, David Rodriguez, Kyle Moneyhun, and defendant. Cruz and Hernandez again discussed Cabrera's discipline. Cruz expressed that he wanted Cabrera beaten up and Hernandez expressed that he wanted Cabrera dead. At some point, defendant and Montantes left the home, stole a Camry, and returned. Defendant and Hernandez then left the home, drove the car to Cabrera's home, picked up Cabrera, and drove Cabrera to Marijane Hamann Park. In the park, defendant kicked Cabrera in the leg and struck him with a baseball bat. He told Cabrera that Hernandez wished to talk with him. Hernandez then tried to shoot Cabrera, but the gun jammed. Hernandez then beat Cabrera to death with the baseball bat.
The defense theory was that defendant had no intent to kill or aid and abet a killing. According to the theory, Hernandez harbored a secret intent to kill Cabrera for revenge but duped defendant into believing that he intended to merely discipline Cabrera.
POLICE INTERVIEW STATEMENTS
The police linked Cabrera to Hernandez and Rodriguez. While keeping a watch over Rodriguez, they observed Rodriguez and defendant interacting. They later located defendant and asked whether he would talk to them about a crime. Defendant agreed, and officers drove him to the police station. The officers escorted defendant into a room where Lieutenant James Randol and Sergeant Tommy Troy video recorded an interview with defendant. After some background questions, Lieutenant Randol advised defendant that he was not under arrest and was free to leave. He and Sergeant Troy then conducted the interview in three parts. The first part lasted about an hour followed by a half-hour break during which officers unlocked the interview room door to allow defendant to use the bathroom. The second part lasted about two hours and 20 minutes during which defendant made certain admissions and after which defendant inquired whether he was going to jail. Following a break of an hour and 20 minutes during which defendant remained in the interview room, the officers removed defendant from the interview room and placed him in a chair in the hallway for 40 minutes. They then handcuffed defendant and took him for fingerprinting and photographing. They returned him to the hallway chair and removed the handcuffs. Two and a half hours later, they began the third part of the interview by giving defendant the Miranda rights and obtaining defendant's waivers thereof. During this third part, defendant provided the details of what transpired in the park.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant makes a three-pronged argument related to his police statements. The first two relate to Miranda.
"Miranda requires courts in criminal cases to exclude, at least from the prosecution's case-in-chief, self-incriminatory statements made by the accused during custodial interrogation unless the accused has knowingly and voluntarily waived the Fifth Amendment privilege against self-incrimination, which in this context includes the rights to silence and the assistance of counsel." (People v. Lessie (2010) 47 Cal.4th 1152, 1156.) " 'Thus two requirements must be met before Miranda is applicable; the suspect must be in "custody," and the questioning must meet the legal definition of "interrogation." ' [Citation.] The prosecution has the burden of proving that a custodial interrogation did not take place. [Citation.] [¶] A person is in custody for purposes of Miranda if he is 'deprived of his freedom in any significant way or is led to believe, as a reasonable person, that he is so deprived.' [Citation.] 'Interrogation consists of express questioning or of words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.' " (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
Defendant first argues that the trial court erred by overruling his objection to the admission of his statements made in parts one and two of the interview. He urges that the officers failed to advise him of his Miranda rights once the interview became a custodial interrogation.
It is unnecessary to address whether a custodial interrogation occurred and whether inadmissible statements resulted. " 'A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.' " (People v. San Nicolas (2004) 34 Cal.4th 614, 639; see Oregon v. Elstad (1985) 470 U.S. 298, 314 (Elstad).)Thus, assuming that the officers subjected defendant to an unwarned custodial interrogation during parts one or two of the interview, the trial court did not err in admitting the unwarned statements provided that the unwarned statements were voluntary and the post-Miranda statements were admissible. Another way to look at this concept is that there can be no prejudice from the admission of unwarned statements when the trier of fact hears the same evidence from post-Miranda statements. Here, defendant's third-prong argument is that all of his statements during parts one, two, and three were inadmissible because they were involuntary. We will disagree with defendant on that point. The present contention is therefore subsumed.
Defendant second argues that the trial court should have excluded the statements he made after the interrogation had become custodial and after he was advised of his Miranda rights because the officers undermined Miranda with the two-step interrogation tactic described in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).He relies on the plurality opinion in Seibert. This reliance is erroneous.
Defendant is unclear about when his interview became a custodial interrogation. At one point, he states that it occurred "Once the car arrived at the station." At another, he implies that it occurred when he "tried to leave the room but found that the door was locked." At still another, he implies that it occurred during the second part of the interview when he "began to make incriminating admissions." Defendant is equally unclear about what statements from parts one and two should have been excluded from evidence but were not. He mentions that, during part one, he "began to talk about the gatherings at Cruz'[s] house that weekend," during part two, he began to make incriminating admissions, and he made statements "lying to police from the outset of the interview." In other contexts, he mentions admitting that he (1) went with Hernandez to pick up Cabrera and take him to the park to meet "some bitches," (2) placed himself at the scene of the killing by saying he "was there," and (3) participated in an assault by punching Cabrera twice in the chest before running away.
Seibert derives from Elstad. In Elstad, police officers went to the defendant's home and questioned him about a burglary without first giving him the Miranda warnings. After the defendant admitted being present at the burglary, the officers took him to the police station. One hour later, the officers informed the defendant of his Miranda rights. The defendant waived those rights and gave a full statement detailing his role in the crime. The court held that "[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." (Elstad, supra, 470 U.S. at p. 309.) "[A]bsent deliberately coercive or improper tactics in obtaining the initial statement," the court found that "subsequent administration of Miranda warnings . . . ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." (Id. at p. 314.)
This issue was revisited in Seibert. Unlike Elstad, where the officer's initial failure to warn was an "oversight" (Elstad, supra, 470 U.S. at p. 316), in Seibert, the police "used a two-step questioning technique based on a deliberate violation of Miranda." (Seibert, supra, 542 U.S. at p. 620 (conc. opn. of Kennedy, J.).) The interview strategy was based on "a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of [Miranda], the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time." (Id. at p. 604.)
Seibert held that "[a] defendant's post-Miranda statements may be inadmissible if law enforcement officers use a two-step interrogation process." (U.S. v. Narvaez-Gomez (9th Cir. 2007) 489 F.3d 970, 973.)
As for the case at bar, Justice Souter's plurality opinion determined that the "repeated statement" obtained immediately after the police had first obtained an unwarned incriminating statement was inadmissible "[b]ecause this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement . . . ." (Seibert, supra, 542 U.S. at p. 604.) It offered an objective test regarding the effectiveness of midstream warnings: "The threshold question in this situation is whether it would be reasonable to find that the warnings could function 'effectively' as Miranda requires. There is no doubt about the answer. . . . When the warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and 'deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.' [Citation.] And it would be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle." (Id. at p. 601.) Under the test, the circumstances to be considered include "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." (Id. at p. 615.)
Justice Kennedy concurred but offered an intent-based test from the perspective of the police. He expressed his view that the plurality's test, which "envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations," was too broad. (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) He noted that the court held in Elstad that "the postwarning statements could be introduced against the accused because 'neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression' given the facts of that case." (Id. at pp. 619-620 (conc. opn. of Kennedy, J.).) With these dual goals in mind, Justice Kennedy observed that a deliberate two-step technique intended to violate Miranda did "not serve any legitimate objectives" and presented inherent temptations for police abuse. (Id. at p. 621.) He concluded: "I would apply a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." (Id. at p. 622.)
"If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. [Citations.] Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).)
"As can be noted, the rule in Justice Souter's plurality opinion [in Seibert ] differs from that in Justice Kennedy's concurring opinion. When a fragmented Supreme Court issues an opinion which does not have the assent of five justices, generally, the controlling holding is that of those who concurred in the judgment on the narrowest grounds." (People v. Rios (2009) 179 Cal.App.4th 491, 504 (Rios).)
The Ninth Circuit has concluded that "Justice Kennedy's concurrence in Seibert is the Court's holding because it is [the] narrowest grounds with which [the] majority of the Court would agree." (U.S. v. Narvaez-Gomez, supra, 489 F.3d at p. 974; see also U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158.) The Ninth Circuit's interpretation of Seibert has been cited with approval by this state's appellate courts. (See, e.g., People v. Camino (2010) 188 Cal.App.4th 1359, 1370-1371; Rios, supra, 179 Cal.App.4th at p. 505.)
Defendant cites dicta from U.S. v. Heron (7th Cir. 2009) 564 F.3d 879, 885, which questions whether Justice Kennedy's concurrence controls and suggests that the plurality's objective test regarding the effectiveness of midstream warnings is the established law issued in Seibert. But the Seventh Circuit has since adopted Justice Kennedy's intent-based approach to addressing two-step interrogations. (See, e.g., U.S. v. Littledale (7th Cir. 2011) 652 F.3d 698, 702 ["There can be no finding of an improper two-step interrogation, however, unless the officers deliberately withheld Miranda warnings until after the suspect confessed."]; U.S. v. Vallar (7th Cir. 2011) 635 F.3d 271, 285-286 ["We have construed Seibert as holding 'that post-warning statements are inadmissible if they duplicate pre-warning statements intentionally elicited in an effort to evade Miranda.' "].) And in the wake of Elstad and Seibert, the majority of the federal circuits have employed Justice Kennedy's separate concurrence as the controlling opinion under the narrowest-grounds doctrine. (See, e.g., U.S. v. Moore (2nd Cir. 2012) 670 F.3d 222, 229; U.S. v. Street (11th Cir. 2006) 472 F.3d 1298, 1313; U.S. v. Courtney (5th Cir. 2006) 463 F.3d 333, 338; U.S. v. Ollie (8th Cir. 2006) 442 F.3d 1135, 1142; U.S. v. Naranjo (3rd Cir. 2005) 426 F.3d 221, 231-232; U.S. v. Mashburn (4th Cir. 2005) 406 F.3d 303, 308-309; but see U.S. v. Carrizales-Toledo (10th Cir. 2006) 454 F.3d 1142, 1151 ; U.S. v. Rodriguez-Preciado (9th Cir. 2005) 399 F.3d 1118, 1138-1143 (dis. opn. of Berzon, J.) (arguing the plurality opinion should be adopted because Seibert left the court with no binding precedent as to the governing standard).)
The First and Sixth Circuits have addressed Elstad and Seibert but have refused to determine whether the plurality or concurrence controls, finding the post-Miranda statements at issue were admissible under both opinions. (See U.S. v. Jackson (1st Cir. 2010) 608 F.3d 100, 104; U.S. v. Pacheco-Lopez (6th Cir. 2008) 531 F.3d 420, 427, fn. 11.)
We agree with the courts that have applied Justice Kennedy's intent-based approach to addressing two-step interrogations.
Defendant concedes that the trial court implicitly found that Lieutenant Randol and Sergeant Troy did not deliberately fail to give him the Miranda warnings. And he concedes that we are bound by that factual finding. His two-step argument therefore fails.
The third prong of defendant's attack on the admissibility of his police statements is that the trial court should have excluded the statements he made after the interrogation had become custodial and after he was advised of his Miranda rights because his statements were involuntary as the products of implicit promises of leniency by the police. According to defendant, the officers "repeatedly intimat[ed] that they could and would help him with respect to the case and his exposure to criminal liability if he proved he was a good person by cooperating with them."
In disagreeing with defendant, the trial court explained: "I wanted to take some time to--I wanted to take some time to give some reflection to my view about whether defendant Wang's statement to the police was voluntary and go back over the notes that I took when I listened to the DVDs and watched them. [¶] And based on the totality of the circumstances and not looking at piecemeal segments, I felt that the statement that the defendant gave was voluntary. And I think that, in addition, that the police were low key, there were breaks, he was fed, allowed to use the rest room. I don't think his will was overborne. I think that he wanted to get this off his chest, and that was the motivation for his revealing the information that he revealed."
" 'It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.] A statement is involuntary [citation] when, among other circumstances, it "was ' "extracted by any sort of threats . . . , [or] obtained by any direct or implied promises, however slight . . . ." ' " [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the "totality of [the] circumstances." ' " (People v. Leonard (2007) 40 Cal.4th 1370, 1402 (Leonard).)
"The test for determining whether a confession is voluntary is whether the questioned suspect's 'will was overborne at the time he confessed.' " (People v. Cruz (2008) 44 Cal.4th 636, 669.) " 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions.' " (Ibid.)
" 'Once a suspect has been properly advised of his [or her] rights, he [or she] may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect. . . . Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession. . . .' " (People v. Holloway (2004) 33 Cal.4th 96, 115.)
"In general, ' "any promise made by an officer or person in authority, express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession and to make it involuntary and inadmissible as a matter of law." ' " (People v. Ray (1996) 13 Cal.4th 313, 339.) An investigating officer is not precluded from discussing any advantage or other consequence which will naturally accrue if the accused speaks truthfully about the crime. Rather, the courts prohibit "only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." (Id. at p. 340.)
"On appeal, we uphold the trial court's findings of historical fact, but we independently review its determination that defendant's statements were voluntary." (Leonard, supra, 40 Cal.4th at pp. 1402-1403.)
Defendant argues that the officers elicited his inculpatory statements with implicit promises of leniency because (1) Sergeant Troy mused in part one of the interview "like how much do I wanna help this person out," (2) Lieutenant Randol offered in part one that "then we can work with you," (3) Lieutenant Randol urged in part one that "we just want you to have credibility when we, we take this to the District Attorney," (4) Lieutenant Randol stated in part one "We're the guys that are gonna help you. We don't give this opportunity to everybody, okay," (5) Lieutenant Randol added in part two "We'll help you through this. . . . We'll get you through this," (6) Sergeant Troy exclaimed in part two "But you can save yourself. You have a whole life in front of you," (7) Lieutenant Randol extolled in part two "let's just get this over with," and (8) Sergeant Troy repeated in part two "We're gonna get you through it."
Defendant's theory is that "the officers' repeated comments, in context and in their totality, suggested they were singling Wang out for special assistance beyond that which would merely flow from telling the truth. By indicating they would 'work with' him, get him through this and 'help' him and by describing such assistance as an 'opportunity' they did not give everyone, the officers implicitly promised he would receive some type of special treatment, i.e., leniency, if he talked."
We agree with the People that defendant has taken snippets of the officers' statements out of context to craft his argument. For example, the "opportunity" statement arose from the following.
"And we're on the path, we're under the logic that s-something happened. Just, things get outta hand sometimes. And not everyone wanted certain things to happen. Okay, I'll, well, I'll fight somebody, but they didn't expect somethin' to go that far, which is what, most of the time, a lotta times, happens. But when they, people start lying to us, that's outta the, that's out the window; then we think, Uh, oh, well, this, it's a lot, this guy's a lot more serious than that. But when something happens, a fight breaks out, f-fights break out and things happen, most people say, Okay, this is what happened, uh, I uh, I, I didn't expect, I, I don't expect that, I didn't expect somebody to die, but I sure as hell, you know, didn't want that to happen."
"Bro, here, here's the bottom line: you are a good kid, okay? You are makin' decisions sitting there by not telling the truth, that are gonna affect your life for the rest of your life. We're the guys that are gonna help you. We don't give this opportunity to everybody, okay? You're the one who is the only guy, he's decided consciously to make a decision to change his life."
In context, despite the personalizing of the offers to give defendant help and an opportunity, there is no basis for concluding that these vague offers were sufficient to cause defendant to make admissions or confess against his will. Those and the other statements singled out by defendant do not contain any promise of tangible benefit for speaking the truth. Arguably, the statements could be interpreted as suggesting that defendant might receive lenient treatment if he agreed to speak with the officers and answer their questions. But the statements do not demonstrate that the detectives promised defendant that he would receive some sort of beneficial treatment if he were to confess. At best, the statements are ambiguous. But the trial court was not required to make the inference that the statements implied the existence of a police promise of lenient treatment.
We therefore agree with the trial court that defendant's will was not overborne by the interrogating officers. The trial court therefore properly overruled defendant's objections to the admission in evidence of the post-Miranda confession (part three) and unwarned admissions (parts one and two).
CALCRIM NO. 625
A defendant is culpable as a principal in the commission of a criminal offense when, with knowledge of the unlawful purpose of the perpetrator, he or she aids and abets its commission and has the specific subjective intent to commit the offense or encourage or facilitate its commission. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) In addition to liability for an intended offense (target offense), an aider and abettor may be culpable for an unintended offense that is a natural and probable consequence of the target offense. (Id. at p. 261.) An offense is a natural and probable consequence of the target offense if a reasonable person in the defendant's position would or should have known that offense was reasonably foreseeable as a consequence of the target offense. (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)
Here, in addition to arguing that defendant was culpable as a principal, the People urged that defendant was culpable as an aider and abettor to first degree murder or as an aider and abettor to the target offense of aggravated assault of which first degree murder was a natural and probable consequence.
Generally, evidence of voluntary intoxication is not admissible to negate the intent required for general intent crimes such as assault. (People v. Atkins (2001) 25 Cal.4th 76, 81.) However, aider and abettor liability requires the person to act with knowledge of the direct perpetrator's criminal purpose and intend to commit, encourage or facilitate the commission of the offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) Accordingly, evidence of voluntary intoxication is admissible to establish whether an aider and abettor acted with that required mental state even if the target crime is a general intent crime. (Id. at pp. 1131-1134.)
Section 22, subdivision (b), provides: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (Italics added.)
Here, the trial court instructed the jury in the language of CALCRIM No. 625 as follows: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, the defendant acted with deliberation and premeditation, or the defendant committed the murder while lying in wait. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using an intoxicating drug, drink, or other substance knowing that it could produce--could produce an intoxicating effect or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose. [¶] Voluntary intoxication is not a defense to assault with a deadly weapon or assault by means of force likely to produce great bodily injury."
Defendant contends that the instruction incorrectly stated the law because (1) it failed "to direct the jury that it could consider intoxication as to the knowledge and specific intent elements required to establish criminal liability on an aiding and abetting theory," and (2) expressly limited such consideration to the mental state elements applicable to a direct perpetrator theory of murder and further emphasized that the jurors "may not consider evidence of voluntary intoxication for any other purpose."
Assuming that CALCRIM No. 625 was deficient as defendant supposes, the error is harmless under any definition of harmless error.
A defendant is entitled to an instruction on voluntary intoxication if there was substantial evidence of intoxication that affected the existence of a required mental state. (People v. Williams (1997) 16 Cal.4th 635, 677.) "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.)
Defendant's evidence, however, was insufficient to trigger any duty to instruct on voluntary intoxication because there was no substantial evidence that defendant was intoxicated to such a degree that it affected his actual formation of specific intent. (People v. Horton (1995) 11 Cal.4th 1068, 1119; see also People v. Verdugo (2010) 50 Cal.4th 263, 295.)
Defendant argues that there were "ample indications that he was drinking on" the night of the murder. He cites his statements to his interrogating officers to the effect that he was "buzzin" at Cruz's party and the "guys" were drinking "Just beers" and "Liquors." But there was no evidence as to the quantity defendant consumed. Nor was there any evidence revealing the effect of alcohol on defendant's ability to form the specific intent necessary for aiding and abetting culpability. Even before the abolition of the diminished capacity defense, our Supreme Court held that "merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, [was] not enough to warrant an instruction on diminished capacity." (People v. Pensinger (1991) 52 Cal.3d 1210, 1241.)
Based on the evidence, the trial court could have refused to instruct on voluntary intoxication. (People v. Williams, supra, 16 Cal.4th at p. 677; People v. Marshall (1996) 13 Cal.4th 799, 848.) That it gave CALCRIM No. 625 is of no moment. "[T]he jury is presumed to disregard an instruction if the jury finds the evidence does not support its application." (People v. Frandsen (2011) 196 Cal.App.4th 266, 278; People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) Because there was no evidence that defendant was intoxicated to such a degree that it affected his actual formation of specific intent at the time of the murder, we presume that the jury disregarded CALCRIM No. 625. Informing the jury that the nonexistent intoxication evidence could also be considered in determining whether defendant formed the specific intent necessary for aiding and abetting would not have changed the result of defendant's trial.
FAILURE TO INSTRUCT
For a special circumstance to apply to an aider and abettor, it must be proved that such a person had the intent to kill. (§ 190.2, subd. (c).)
Defendant contends that the jury instructions failed to convey that an aider and abettor must have the intent to kill for the special circumstance to be found true. According to defendant, the jury instructions should have specified "that the aiding and abetting principles available for determining culpability for the charged offense of murder did not apply to the special circumstance allegations." There is no merit to this contention.
"When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a 'reasonable juror' could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
Here, the trial court instructed the jury on aiding and abetting in the language of CALCRIM No. 401 to the effect that aiding and abetting requires knowing of the perpetrator's unlawful purpose with the specific intent to aid, facilitate, promote, encourage, or instigate the perpetrator's commission of the crime. It also instructed on the special circumstance allegations in the language of CALCRIM No. 705 as follows: "In order to prove both special circumstances charged, the People must not--prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. The instruction for each special circumstance explains the intent or mental state required." And it instructed on the gang special circumstance allegation in the language of CALCRIM No. 736 as follows: "The defendant is charged with the special circumstance of committing murder while an active participant in a criminal street gang . . . . To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant intentionally killed Christopher Cabrera." In addition, the prosecutor told the jury the same: "A person aids and abets when, knowing the intent of the perpetrator, with the intent to commit, encourage, or facilitate the crime, by words of conduct, aids, promotes, encourages, or instigates the commission of that crime." "Killing by a street gang member, the other special circumstance. This also requires that you find the defendant have [sic]a specific intent to kill. It is a little bit different than second-degree murder, which can be found on implied malice. It's a little bit different than a theory of first-degree murder, the lying in wait first-degree murder theory, which does not require intent to kill. This requires an intent to kill." Moreover, defendant himself distinguished between culpability intent and special-circumstance intent when he told the jury the following: "It's not first-degree murder. There's no evidence that Greg Wang acted willfully, with intent to kill, deliberately, and carefully weighed considerations or premeditated--and premeditating, decided to kill before committing the act. Zero. [¶] No evidence that Greg Wang concealed his purpose, he waited and watched for an opportunity to act, and then made a surprise attack. No evidence of that.
The People also charged a lying-in-wait special circumstance allegation, but the jury found the allegation not true.
And if it's not first-degree murder, it must be second-degree murder. It must be second degree murder. [¶] Again, the special circumstances, you only get to look at these--I mean, you can look at them, I guess, but you only get--as far as deliberation's [sic] concerned, if you find first-degree murder. Find second-degree murder, you don't--there's no special circumstances. And--and not guilty of murder completely, of course, you don't look at these either. [¶] But, again, to go through these quickly, lying in wait was one special circumstances [sic]. Again, it's not supported by the evidence. No intentional killing. It's not lying in wait. It's got to be an intentional killing. Greg did not intentionally kill anybody. [¶] Killing by a street gang member is the other. Again, must be an intentional killing, which we don't have."
Thus, the trial court gave the jury correct and unambiguous aiding and abetting instructions and special-circumstance instructions, the prosecutor correctly and unambiguously argued the points to the jury, and defendant himself made the critical distinction to the jury.
On the other hand, defendant's argument is pure speculation. He supposes that murder via aiding and abetting tends "to blur somewhat the distinction between the direct perpetrator's intent and that of his accomplice." From there he asks the question "what assurance can one derive from the instructions that the jury did not apply the same [blurred] reasoning in approaching the street gang special circumstance?" He offers that "it is difficult to see how or why lay jurors would have made and applied such a fine distinction" given that they "may not appreciate all of the nuances of the law."
In sum, defendant strains to conjure an erroneous legal theory from relevant and legally correct standard instructions. But our inquiry is not directed to whether it is possible that the jury could interpret the challenged instruction in a particular way--that is, whether an appellant's interpretation "could be teased out of the instruction[]." (People v. Avena (1996) 13 Cal.4th 394, 417.) We presume that the jurors followed the court's instruction to consider the instructions as a whole and were able to understand and correlate the instructions in reaching a verdict. (See People v. Pinholster (1992) 1 Cal.4th 865, 919; People v. Adcox (1988) 47 Cal.3d 207, 253; People v. Scheer (1998) 68 Cal.App.4th 1009, 1023; People v. Scott (1988) 200 Cal.App.3d 1090, 1095.) "Jurors are routinely instructed to make . . . fine distinctions concerning the purposes for which evidence may be considered, and [the reviewing court] ordinarily [presumes] they are able to understand and follow such instructions. [Citations.] Indeed, [courts] have described the presumption that jurors understand and follow instructions as '[t]he crucial assumption underlying our constitutional system of trial by jury.' " (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Accordingly, we find no reasonable likelihood that the jury misunderstood the instructions so as to fail to grasp the concept that an aider and abettor must have an intent to kill for the special circumstance to be found true.
TEN-YEAR GANG ENHANCEMENT
The trial court imposed and stayed a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), which provides: "Except as provided in paragraphs (4) [life terms for certain enumerated felonies] and (5) [minimum parole eligibility for life terms], any person who is convicted of a felony 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, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Defendant argues that the enhancement was unauthorized because he was convicted of first degree murder. He relies on section 186.22, subdivision (b)(5), which provides: "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." He also relies on People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), in which the Supreme Court held that a defendant who commits a gang-related violent felony that is punishable by life imprisonment is not subject to the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) but, rather, is subject to a minimum parole eligibility term of 15 years under section 186.22, subdivision (b)(5).(Lopez, supra, at p. 1010.)
Lopez is distinguishable from the present case. In Lopez, the defendant was sentenced to a term of 25 years to life for first degree murder (Lopez, supra, 34 Cal.4th at p. 1005), whereas, defendant here was sentenced to life without the possibility of parole for special circumstance first degree murder. It would make no sense and would serve no purpose to include a minimum parole date on such a term. The purpose of sentencing the defendant to additional enhancements, such as the 10-year gang enhancement, is to protect against the eventuality that the defendant's sentence might one day be reduced on direct appeal or habeas corpus. (See, e.g., People v. Garnica (1994) 29 Cal.App.4th 1558, 1564.)
Moreover, our Supreme Court has twice suggested, albeit in dicta, that the minimum parole eligibility provision was never intended to apply to persons sentenced to life without parole. In Lopez, the Supreme Court examined the history of the California Street Terrorism Enforcement and Prevention Act (STEP Act) and noted that a 1988 enrolled bill report which analyzed the financial impact of the provision stated: " ' "This proposed provision relating to life terms [former section 186.22, subdivision (b)(3), now section 186.22 [subdivision] (b)(5)] would apply to all lifers (except life without possibility of parole)." ' " The court concluded that, "at the time the STEP Act was enacted, the predecessor to section 186.22 [subdivision] (b)(5) was understood to apply to all lifers, except those sentenced to life without the possibility of parole." (Lopez, supra, 34 Cal.4th at p. 1010.) Similarly, in People v. Montes (2003) 31 Cal.4th 350, the court examined in detail the 1988 enrolled bill report, which summarized the terms that would be affected by what is now section 186.22, subdivision (b)(5), and noted that the terms of first degree murder would be affected only when there were no special circumstances. (People v. Montes, supra, at p. 358, fn. 10.)
Because a term of life without parole contains no anticipated parole date, it would be anomalous to include a minimum parole date on such a term. Accordingly, we conclude the trial court properly imposed and stayed the 10-year enhancement under section 186.22, subdivision (b)(1)(C).
DISPOSITION
The judgment is affirmed.
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Premo, J.
WE CONCUR: ______________
Rushing, P.J.
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Duffy, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.