Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C148769
Siggins, J.
Lamar R. Williams appeals his convictions for first degree murder with special circumstances, attempted murder, and possession of a firearm by a felon. He argues that the trial court failed to properly instruct the jury on aiding and abetting, and that prosecutorial misconduct deprived him of a fair trial. We modify the sentence and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of the murder of Stephanie Franklin and other crimes in connection with shootings that followed a late-night confrontation at the Oakland Giant Burger at 81st Avenue and East 14th Street. Defendant arrived at Giant Burger in his brother’s car with Larona Jones, a girl he was dating. Defendant’s brother was driving. Lendell Waters got out of a car nearby that was driven by Siara Spriggs, and also carried Stephanie Franklin and Waters’s cousin, George Carnegie.
Waters greeted Larona Jones as they walked to the food window, and they hugged. Waters did not know Jones was with defendant. Jones said Waters was trying to “hit on” her, and she told him “it’s not cool.” Defendant was upset and angry at the interaction between Jones and Waters. He reprimanded Jones and told her in “a mean way” to order her food. She did so and returned to the car.
Jones saw Waters sneering at defendant while he and defendant were talking, and she was concerned that something bad was going to happen. Waters returned to Spriggs’s car, and said some guy “disrespected him” when he was just trying to be friendly. When defendant returned to his brother’s car, he borrowed his brother’s cell phone and walked away. Within a minute, the car Waters was in backed out of the parking lot.
Waters told Spriggs to take him home, but then apparently changed his mind and asked her to go back to the Giant Burger. As Spriggs slowed the car to let Waters and Carnegie get out, she heard a gunshot and quickly drove away. Numerous gunshots were coming from the back right rear of the car driving on her left, and Spriggs felt a bullet hit her leg. She saw what looked like a rifle sticking out of the back right window of the adjacent car. Waters saw a muzzle flash, and ducked down in the back seat. The shooter was seated in the right rear passenger seat. Waters thought the car was the one defendant and Jones were in at the Giant Burger parking lot, and thought he heard Jones’s voice screaming at the time of the shooting. Carnegie testified that he saw defendant and Waters arguing in the parking lot, but that defendant was not the shooter.
Alexander Gomer was in Jideofor Ajaelo’s car, along with Lanare Wise and Michael Anderson. Wise was in the front passenger seat. Near the Giant Burger, defendant got in the car and sat behind Wise. As they drove next to another car, Gomer heard shots and ducked, because he thought someone was shooting at them. Then he realized the shots were fired from the area where defendant was sitting. Although he did not see the gun, Gomer knew by the sound that it was a handgun. Gomer had known Wise since elementary school, and saw Wise several times a week. He testified Wise was not the shooter.
Gomer first told police he was not in the car, but later admitted he was there when the shooting occurred. Gomer also testified that defendant did not fire a shotgun, and Gomer did not remember seeing a shotgun.
Spriggs screamed at the people in Ajaelo’s car to stop shooting, stopped her car, and tried to flee on foot, but fell because of her gunshot wound. Waters and Carnegie ran. Spriggs was shot five times, but survived. Stephanie Franklin died from a gunshot wound to her back. Waters was shot in the arm and the leg, but survived. Carnegie was uninjured.
Police recovered 15 cartridge cases at the scene that came from a single firearm. The marks on the cartridge cases were characteristic of a Ruger pistol. No shotgun pellets were found at the scene or in the victim’s car. A shotgun loaded with five shotgun shells was found in the backseat of a car at Wise’s residence. After the shotgun was test fired, the firing pin did not advance sufficiently to fire a second round.
Defendant returned to his brother’s car in the Giant Burger parking lot about 10 minutes after he borrowed his brother’s cell phone, and asked his brother to drop him and Jones off at 88th Street. He did not say where he had been, and Jones did not ask. Defendant was arrested approximately two weeks later, and tape recordings of his statements to police were played to the jury. Defendant said he argued with Waters, who told him something like “I’m on one.” That made defendant nervous, and he used his brother’s cell phone to call Wise, who told defendant he would come right away. Defendant had seen Wise with a gun before, and knew Wise to be armed.
Jones initially denied that she had been at the Giant Burger and that she knew defendant. Later she admitted she was at the Giant Burger that night, and she received money from the city to relocate.
Defendant told Wise over the phone that maybe the people in Spriggs’s car were about to shoot him. Defendant thought Wise would just come to Giant Burger and stay with him, but instead Wise followed the car driven by Spriggs and defendant heard shooting. After some further questioning, defendant admitted he pointed Spriggs’s car out to Wise and told Wise, “There they go, right there,” although he denied that he got into Ajaelo’s car with Wise and the others.
Later defendant made another tape-recorded statement to police, in which he admitted he was in the back of Ajaelo’s car when Wise unexpectedly started shooting. Afterwards they dropped defendant off near Giant Burger, and he got back into the car with Jones and his brother as though nothing had happened. Defendant gave a similar statement to a deputy district attorney. When he was told that other witnesses saw him shooting, defendant said he tried to shoot a shotgun but it would not fire. Later he said the shotgun accidentally fired into the air.
Defendant claimed he later asked Wise why he started shooting, and Wise just laughed. Wise told police the shots came from behind him. Ajaelo said the shots came from his right, but did not state whether they came from the front or back seat.
Defendant was charged with the murder of Stephanie Franklin, with a drive-by shooting special circumstance; the attempted murders of Spriggs, Waters, and Carnegie; and being a felon in possession of a firearm. Firearm enhancements and a prior conviction were also alleged.
Wise and Ajaelo were charged in the same information, but defendant was tried separately.
At trial, defendant testified that his brother drove defendant and Jones to the Giant Burger the evening of the shooting. After Jones spoke with Waters, Waters smirked at him and told defendant, “I’m on one.” To defendant that comment suggested that Waters was “looking for trouble.” Defendant thought Waters had a gun because he did not back down from defendant. The car Waters was riding in drove off, but then returned and stopped by a nearby street corner, and defendant thought Waters intended to shoot him. Defendant called Wise, and said, “Come up to Giant Burgers, blood. I think they about to get me.”
When Ajaelo’s car arrived, Wise was in the front passenger seat, and Gomer was in the rear seat with someone else. Defendant got in the right rear passenger seat and pointed out Waters’s car, saying “That’s the car right there.” Waters’s car drove off, and Ajaelo followed it. Defendant did not know Wise had a gun that night, but he had seen Wise with a gun on other occasions. Wise then fired a handgun continuously at the other car until the gun was empty.
Before Wise started shooting, defendant was shocked to see that Gomer, who was in the back seat next to defendant, was holding a shotgun and looked like he planned to shoot out the rear passenger side window. Defendant took the gun to stop Gomer from using it. After Wise emptied his gun, he looked back at defendant as if to ask why defendant had not been shooting. Defendant stuck the shotgun out the window and pretended it was jammed and would not fire. Defendant saw that the girl in the right front passenger seat in Spriggs’s car was slumped over, and he felt bad because he did not want anyone killed or seriously injured.
Ajaelo then took defendant back to Giant Burger, where he returned to his brother’s car and said nothing about the shooting. Defendant testified he did not direct Wise to do anything to Waters and the people in Spriggs’s car, and that Wise acted on his own. When defendant spoke to police, he thought they were going to help him, and he expected that he would have to testify against Wise, but if he identified the people involved he would not be charged.
The jury found defendant guilty of first degree murder, premeditated attempted murder, and being a felon in possession of a firearm. The jury also found true the drive-by shooting special circumstance. The jury found not true the allegation of personal and intentional discharge of a weapon, but found true allegations of personal use of a firearm and being armed with a firearm.
Defendant was sentenced to 35 years to life without the possibility of parole for the Franklin murder, consecutive terms of 10 years to life for the attempted murders of Spriggs, Waters and Carnegie, and a two-year concurrent term for being a felon in possession of a firearm. Defendant was also ordered to pay victim restitution of $25,562.02, a $1,000 restitution fine, and a $1,000 parole revocation restitution fine. He timely appealed.
Four 10-year enhancements for personal use of a firearm were stayed.
DISCUSSION
A. Jury Instructions on Aiding and Abetting
Defendant argues that the instructions to the jury on his potential guilt as an aider and abettor violated his right to due process because the jury was not sufficiently informed that defendant could be convicted of second degree murder even if the jury determined a first degree murder was committed by the perpetrator. He bases his argument upon an analysis of the text of the aider and abettor instruction read to the jury and People v. Woods (1992) 8 Cal.App.4th 1570. We are unpersuaded. The verdict shows the jury was to consider second degree when it found defendant guilty of first degree murder as an aider and abettor. The jury also determined true a special circumstance that the murder was perpetrated by means of discharge of a firearm from a motor vehicle that was intended by the defendant to cause death. Moreover, this case is distinguishable from Woods because here the very act causing death was originally contemplated by the perpetrator in this case.
The text of the aider and abettor instruction read to the jury and the instructions on the lesser charge of shooting from a motor vehicle are reprinted in Appendix A, post, page 13.
Defendant testified at trial that he summoned Wise to the Giant Burger because defendant had a concern that he would be killed by Waters and his friends. He knew Wise was occasionally armed. He got into the car with Wise and pointed out the car carrying Waters and the other victims. Then, defendant testified he was surprised to see the passenger next to him was armed with a shotgun, and Wise, apparently without indicating his intent to do so, emptied his handgun by shooting into the victims’ car. Defendant also testified that he did not direct Wise to do anything and that Wise acted on his own. The jury obviously disbelieved defendant’s testimony when it concluded that defendant was guilty of the special circumstance. Moreover, it was incumbent on the prosecution to prove, and the jury to conclude, that “defendant knew the perpetrator intended to commit the crime” in order to convict him as an aider and abettor.
This is especially true because in this case at defendant’s request the court instructed the jury that “[t]he evidence must show that an aider and abettor intended to facilitate or encourage the target offense of Penal Code 12034 (d) [maliciously discharging a firearm from a motor vehicle] before or during the commission of the murder and attempted murders.”
During deliberations, the jury asked the court, with reference to the general instructions on aiding and abetting: “At what point in time does the potential aider and abettor need to be clear on the intent of the perpetrator? [¶] Does he have to be clear on intent prior to or during his own words or conduct that indicate he is in fact aiding and abetting the perpetrator’s commission of the crime?” The court responded, with consent of counsel: “The defendant must have knowledge of the intent of the perpetrator at the time he commits the acts which constitute aiding and abetting. He may have obtained that knowledge either before or during the commission of those acts.”
The instruction on the special circumstance of “committing murder by shooting a firearm from a motor vehicle” also stated in relevant part that: “To prove that this special circumstance is true, the People must prove that: [¶] 1) The defendant or Lanare Wise shot a firearm from a motor vehicle, killing Stephanie Franklin [¶] 2) The defendant or Lanare Wise intentionally shot at a person who was outside the vehicle [¶] AND [¶] 3) At the time of the shooting the defendant intended to kill.” (Italics added.)
While defendant acknowledges that the jury was instructed on second degree murder “in the abstract,” he contends the jury “was not instructed on any legal basis of arriving at second degree murder under the natural and probable consequences theory of liability” and was thus “deprived of legal guidance on an essential element of the offense of second degree murder as it applied to the facts of this case . . . .”
We are not persuaded by defendant’s argument that the jury could have found defendant guilty of first degree murder under the instructions given by imputing to defendant Wise’s intent to kill. The language of the special circumstance instruction is explicit: while the first two elements could be satisfied by a finding that either defendant or Wise shot a firearm from a motor vehicle at a person outside the vehicle, the third element required the jury to find that defendant himself had the intent to kill at the time of the shooting. The jury was also instructed that defendant was required to have knowledge of the perpetrator’s intent at the time he acted to aid and abet him, and that the murder was not a natural and probable consequence of the common plan if it was committed for an independent reason. (See People v. Woods, supra, 8 Cal.App.4th at pp. 1583-1584.) It must be presumed that the jury followed these instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; see also People v. Guiton (1993) 4 Cal.4th 1116, 1127.)
Nor does defendant contend that the prosecutor suggested any such imputed intent theory to the jury during argument.
The jury was not required to find that defendant himself fired a weapon to conclude that he participated with the intent to kill.
Thus, any arguable error in failing to explicitly instruct that an aider and abettor can be found guilty of a lesser crime than the perpetrator was harmless beyond a reasonable doubt in this case. (See People v. Hardy (1992) 2 Cal.4th 86, 192-193 [improper omission of instruction on intent-to-kill element of multiple-murder special circumstance for aider and abettor was harmless when jury necessarily found an intent to kill under other properly given instructions]; see also People v. Prettyman (1996) 14 Cal.4th 248, 276 [defendant “suffered no prejudice from any possible error in failing to instruct on” lesser included offense “[b]ecause ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions’ ”]; People v. Guiton, supra, 4 Cal.4th at p. 1130 [presentation to jury of legally inadequate theory does not require reversal when “it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory”]; People v. Chavez (2004) 118 Cal.App.4th 379, 390 [erroneous felony murder instruction in drive-by murder case held harmless when, inter alia, “the instructions accurately advised the jury that the specific intent to kill while firing intentionally at a person outside the vehicle had to be proven by the prosecution”].)
B. Prosecutorial Misconduct
Defendant argues the prosecutor improperly impugned defense counsel’s integrity during defendant’s cross-examination by exploring inconsistencies between defendant’s testimony at trial and his earlier statements to police. We disagree.
Defendant testified that he could not recall telling police that he had previously seen Wise with a gun. Defense counsel then objected when the prosecutor asked defendant how many times he had met with his lawyer to discuss his testimony. The court sustained the objection. The defendant agreed with the prosecutor that some of his trial testimony was different than the statements he made to police. The prosecutor then asked defendant: “When did you come up with the different parts?” A little bit later, the prosecutor again asked defendant when he came “up with the version” he told the jury.
Outside the jury’s presence, defense counsel expressed his concern to the court that the prosecutor had “basically accused [counsel] of suborning perjury” by implying defendant changed his testimony as a result of conversations with his lawyer. The court reminded defense counsel that it had sustained his objections. The court then stated that the order of the questions could imply “that somehow this story was cooked up by [defense counsel],” and the prosecutor was instructed to refrain from references to defendant’s meeting with his attorney in future cross-examination. The prosecutor said he would abide by the court’s ruling, and defense counsel did not request a curative admonition to the jury. Accordingly, this claim of prosecutorial misconduct was not properly preserved for appeal. (See People v. Earp (1999) 20 Cal.4th 826, 858 [to preserve a prosecutorial misconduct claim for appeal, defense counsel must timely object and request an admonition; the issue is otherwise reviewable only if an admonition would not have cured the harm]; People v. Miller (1990) 50 Cal.3d 954, 1001 [“although defense counsel objected to the statements, he did not request an instruction or admonition that could have easily dispelled any possible prejudicial effect on the jury . . . [and] the asserted objection was thereby waived”].) Nor is defendant’s claim of prosecutorial misconduct successful on the merits.
The court later instructed the jury to disregard questions to which an objection was sustained, and not to assume the truth of “any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer.”
The objective of the prosecutor’s line of questioning was to show that defendant had changed his story to avoid liability for murder. That theory impugned the truthfulness and credibility of defendant’s testimony, but did not specifically or explicitly attack defense counsel’s ethics or integrity. (Cf. Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193, 1194-1195 & fn. 2 [improper to accuse defense counsel of “machinations” in tampering with a “malleable” prosecution witness, and to imply that “all defense counsel in criminal cases are retained solely to lie and distort the facts and camouflage the truth”]; U.S. v. McLain (11th Cir. 1987) 823 F.2d 1457, 1462 [improper to repeatedly accuse defense counsel of intentionally misleading the jurors and lying in court]; People v. Gionis (1995) 9 Cal.4th 1196, 1216-1217 [misconduct to argue that lawyers have a duty to lie, although court’s “prompt admonishment adequately corrected any misconceptions that could have been conveyed to the jury”]; People v. Miller, supra, 50 Cal.3d at p. 1001 [misconduct to accuse defense counsel of not being truthful with the jury]; People v. Pitts (1990) 223 Cal.App.3d 606, 690, 705 [“gross prosecutorial misconduct” included accusing defense counsel of “contributing to the ruination” of the life of the victim in a child molestation case].) Defendant has shown neither that prosecutorial misconduct occurred, nor that it was prejudicial.
Later in cross-examination, for example, the prosecutor asked whether defendant “knew that [his] taped statements made [him] guilty of first degree murder,” and suggested that “[t]he first time [defendant] decided to tell [his current story] was yesterday in court.” The court sustained objections to both questions.
C. Unauthorized Sentence
The Attorney General concedes that the trial court erroneously imposed terms of 35 years to life without the possibility of parole for the drive-by shooting special circumstance. The proper penalty for first degree murder with special circumstances is death or life without the possibility of parole. (Pen. Code, § 190.2, subd. (a)(21); People v. Rodriguez (1998) 66 Cal.App.4th 157, 164.) The abstract of judgment will therefore be modified to show the term of life without the possibility of parole on the murder conviction plus a 10-year enhancement for defendant’s personal use of a firearm. The parole revocation restitution fine will also be stricken as unauthorized. (§ 1202.45; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182 [parole revocation restitution fine “does not apply to an accused who receives a sentence of life in prison without possibility of parole”].)
DISPOSITION
The sentence on the conviction for first degree murder, with a drive-by shooting special circumstance, is modified to reflect a term of life imprisonment without the possibility of parole. The parole revocation restitution fine is stricken. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed.
We concur: McGuiness, P.J., Parrilli, J.
APPENDIX A
The court instructed the jury: “A person may be guilty of a crime in two ways. 1, he may have directly committed the crime; 2[,] he may have aided and abetted someone else, who committed the crime. In these instructions I will call that other person the perpetrator. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime a person may also be found guilty of other crimes [that] occurred during the commission of the first crime. [¶] To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1, The perpetrator committed the crime; [¶] 2, The defendant knew that the perpetrator intended to commit the crime; [¶] 3, Before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; [¶] 4, The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him or her an aider and abettor.”
The court then defined Penal Code section 12034, subdivision (d), shooting from a motor vehicle, and instructed the jury: “Before you may decide whether the defendant is guilty of murder, you must decide whether he is guilty of Penal Code section 12034(D). [¶] To prove that the defendant is guilty of murder, the People must prove that: [¶] 1, The defendant is guilty of aiding and abetting the crime of Penal Code section 12034(D). [¶] 2, During the commission of the crime of Penal Code section 12034(D), the crime of murder was committed; and [¶] 3, Under all of the circumstances a reasonable person in the defendant’s position would have known that the commission of the murder was a natural and probable consequence of the commission of the crime of 12034(D). [¶] . . . [¶] 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 Penal Code 12034(D), then the commission of murder was not a natural and probable consequence of Penal Code section 12034(D). [¶] To decide whether the crime of murder was committed, please refer to the separate instructions that I will give you on that crime. [¶] In determining whether a consequence is natural and probable, you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual had intervened. ‘Probable’ means likely to happen.”