Opinion
G040888
03-08-2018
THE PEOPLE, Plaintiff and Respondent, v. WESLEY IRA YOUNG, Defendant and Appellant.
Law Offices of Russell and Russell, and Kent A. Russell for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF106722) OPINION Appeal from a judgment of the Superior Court of Riverside County, Paul E. Zellerbach, Judge. Affirmed. Law Offices of Russell and Russell, and Kent A. Russell for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
In People v. Chiu (2014) 59 Cal.4th 155 (Chiu), the California Supreme Court examined which theories of aiding and abetting liability can be used to convict a defendant of first degree premeditated murder. The court held a defendant cannot be convicted of that offense under the natural and probable consequences theory of aiding and abetting. However, "[a]iders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles. [Citation.] Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission. [Citation.]" (Id. at pp. 166-167.) In other words, the state must prove the defendant acted with premeditation. Appellant contends the jury instructions in his case failed to convey that requirement, but we disagree and affirm his conviction for first degree murder.
FACTS
On October 12, 2002, appellant, codefendants Tavares Scott and Mario Gray, and several other members of the 94 Hoover Crips crashed a sweet 16 party in Corona to get revenge on Cedric Brewer. Before entering the party, appellant's group devised a plan to have Gray's brother fight Brewer. The other members of the group were prepared to join the fight, and Scott said he had a handgun for "backup," just "in case something [went] wrong."
When appellant's group got to the party, three or four of them confronted Brewer and started beating him up. The host of the party intervened, broke up the attack and announced the party was over. Unfortunately, though, that was not the end of things. As the partygoers began to depart, Scott and another man pulled out guns and opened fire. Someone else in appellant's group also fired shots toward a girl who was looking out a nearby window. In all, at least 14 shots were fired from 3 different guns. One of the shots struck and killed 13-year-old Daveon Lee, who was a guest at the party.
Appellant and his codefendants were jointly charged with first degree premeditated murder, attempted premeditated murder and shooting at an inhabited dwelling. (Pen. Code, §§ 187, subd. (a), 664/187, 246.) The prosecution also charged various firearm and gang allegations, including the special circumstance allegation that appellant and his cohorts murdered Lee to benefit their gang. (Pen. Code, §§ 12022.53, subds. (d), (e)(1); 186.22, subd. (b)(1); 190.2, subd. (a)(22).)
Three separate juries were empaneled to hear the case. During his closing argument to appellant's jury, the prosecutor pointed out that during a pretrial interview with the police, one of the witnesses implicated appellant as being one of the shooters, and therefore the jury could find appellant liable on the basis he was the actual perpetrator of Lee's murder. However, conceding he would never be able to definitively prove who killed Lee, the prosecutor relied primarily on aiding and abetting principles. In particular, the prosecutor argued 1) appellant directly aided and abetted Lee's murder, and 2) the murder was a natural and probable consequence of the planned attacked on Brewer. The prosecutor submitted that under either one of those theories, appellant was guilty of first degree premeditated murder. In the end, appellant was convicted as charged and sentenced to life in prison without parole.
The prosecutor also relied on uncharged conspiracy principles, which mirrored the natural and probable consequences theory he tendered with respect to aiding and abetting liability. (See generally People v. Rivera (2015) 234 Cal.App.4th 1350, 1356 [noting conspiracy and aiding and abetting are analogous to each other when it comes to the natural and probable consequences doctrine].) --------
We affirmed the judgment on appeal (People v. Scott (Mar. 30, 2009, G040888) [nonpub. opn.]), and the California Supreme Court denied review. However, after the Supreme Court handed down its ruling in Chiu, we granted appellant's request to recall the remittitur to determine what effect, if any, Chiu has on his case. We now take up that issue.
DISCUSSION
Appellant contends his conviction for first degree premeditated murder must be reversed under Chiu because the record is unclear as to whether the jury convicted him under the direct or the natural and probable consequences theory of aiding and abetting. We agree the record is ambiguous in that regard. However, in contrast to Chiu, the jury instructions in this case did not permit the jury to return a first degree murder verdict unless it believed appellant personally acted with premeditation. For this reason, Chiu is distinguishable and we affirm appellant's conviction.
Like appellant, the defendant in Chiu was convicted of first degree premeditated murder following a trial in which the prosecution relied on both the direct theory of aiding and abetting and the natural and probable consequences theory. (Chiu, supra, 59 Cal.4th at pp. 159-161.) On appeal, the Supreme Court ruled a defendant may be convicted of second degree murder under the natural and probable consequences theory, but not first degree premeditated murder. That's because the mental state required for first degree premeditated murder "is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. [Citations.]" (Id. at p. 166.) Thus, after Chiu, "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles[,]" meaning he must personally premeditate. (Id. at pp. 158-159, 166-167.)
The problem in Chiu was that the trial court's instructions did not convey this requirement to the jury. To the contrary, the jury was instructed it could find the defendant guilty of first degree premeditated murder under the natural and probable consequences theory so long as the perpetrator acted willfully, deliberately and with premeditation. (Chiu, supra, 59 Cal.4th at p. 161.) In other words, the instructions allowed the jury to convict the defendant based on the perpetrator's state of mind. Chiu found this to be improper because "the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine[.]" (Id. at p. 166.) Moreover, because the record was unclear as to which theory of aiding and abetting the jury relied on, the Supreme Court reversed the defendant's conviction for first degree murder and gave the prosecution the option of retrying him for second degree murder. (Id. at p. 168; accord, In re Martinez (2017) 3 Cal.5th 1216 [applying Chiu in habeas proceeding].)
The jury instructions in the present case were materially different from the jury instructions given in Chiu. As in Chiu, the instructions stated appellant could be convicted of murder under either the direct or the natural and probable consequences theory of aiding and abetting. However, unlike Chiu, the jury was also instructed, per the 2006 version of CALCRIM No. 521, "If you decide [appellant] committed murder, you must decide whether it is murder in the first or second degree. [¶] [Appellant] is guilty of first-degree murder if the People have proved that he acted willfully, deliberately, and with premeditation." After explaining the terms willfully, deliberately and premeditation, the court informed the jury, "All other murders are of the second degree."
Under these instructions, it was not possible for the jury to return a verdict of first degree premeditated murder unless it was convinced beyond a reasonable doubt appellant acted willfully, deliberately and with premeditation. Therefore, the instructional problem in Chiu, which permitted the defendant to be convicted of first degree premeditated murder based on the perpetrator's mental state, did not exist.
Appellant disagrees. He contends we shouldn't pay too much attention to CALCRIM No. 521 because the "the prosecutor vigorously argued natural and probable consequences as a theory for convicting [him] of first degree murder." Indeed, he claims CALCRIM No. 521 has no applicability whatsoever when that theory is used to convict the defendant based solely on the perpetrator's intent.
Our response is twofold. First and foremost, the jury did not have any choice but to apply CALCRIM No. 521 once it determined appellant was guilty of murder. As stated above, the instruction told the jury that if it found appellant committed murder, it "must decide whether it is murder in the first or second degree." (Italics added.) We presume the jury understood and followed this admonishment. (People v. Yeoman (2003) 31 Cal.4th 93, 138-139.) Per CALCRIM No. 521, the jury was also told it could only find appellant guilty of first degree murder if "he acted willfully, deliberately, and with premeditation." (Italics added.) Thus, by convicting appellant of that offense, the jury necessarily found he possessed the requisite intent for first degree premeditated murder.
Second, the record refutes appellant's assertion the prosecutor used the natural and probable consequences theory of aiding and abetting to convict him of first degree murder. In his closing argument, the prosecutor did urge the jury to use that theory "in order to get to murder." But in discussing the separate issue of premeditation, the prosecutor steered clear of the natural and probable consequences theory altogether.
Considering everything the jury heard and the manner in which it was instructed, we are confident that by finding appellant guilty of first degree murder, it necessarily determined he acted with premeditation. Therefore, no Chiu error occurred, and there is no basis for disturbing appellant's conviction for that offense.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.