P. v. Abelar
Filed 9/11/13 P. v. Abelar CA2/3
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD ABELAR et al.,
Defendants and Appellants.
B241346
(Los Angeles
County
Super. Ct.
No. MA051285)
APPEAL from
judgments of the Superior Court
of
County, Kathleen Blanchard, Judge. Affirmed.
Deborah L.
Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant
Richard Abelar.
Linn Davis,
under appointment by the Court of Appeal, for Defendant and Appellant Andrew
Sabo.
Derek K.
Kowata, under appointment by the Court of Appeal, for Defendant and Appellant
Alex Ortega.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
>
Defendants and appellants
Alex Ortega and Richard Abelar appeal their convictions for second degree
murder, and appellant Andrew Sabo appeals his conviction for voluntary
manslaughter, arising from an incident in which the trio fought with and killed
a rival gang member. Ortega and Abelar
were sentenced to 15 years to life in prison, and Sabo was sentenced to 11
years.
Ortega and Abelar contend the trial
court made various evidentiary errors.
Abelar additionally contends the court improperly instructed the jury
and the evidence was insufficient to support his
years to life in prison constitutes cruel and unusual punishment. Sabo’s appellate counsel has filed an opening
brief that sets forth the facts of the case, and requests that this court
conduct a review pursuant to
436, to determine whether any arguable issues exist. We affirm the judgments.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
a.
Viewed in the light most favorable to the judgments (
Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on
appeal established the following.
(i)
Background information.
Appellants Sabo and Ortega, who
claimed to be cousins, were both members of the six-member “Weed Token Familiaâ€
(WTF) gang. Sabo went by the moniker
“Ghost†and Ortega by the moniker “Toker.â€
The “Crazy Kings Familia†(CKF), also known as “CKF Palmas,†was a
criminal street gang based in the Antelope Valley, with approximately 30 active
members. The CKF and the WTF were
allied, or “cliqued up,†meaning that they would back each other up in a
gang-related fight. Appellant Abelar,
who used the moniker “Tiny,†was a CKF gang member.
The Sureños Locos Soldiers (SLS) was
a criminal street gang with 20 or 30 members.
The victim, Erwin Velasquez, was an SLS gang member. Velasquez went by the moniker “Chubbs,†and
had an SLS gang tattoo on his forehead.
The CKF and the SLS gangs were rivals.
Both gangs claimed Larkin Street in Palmdale as their territory.
Witness Don T. was 13 years old at
the time of trial and was a gang “wannabe,†but not a gang member. Don’s older brother was a CKF gang
member. Don was nonetheless friends with
Velasquez, as well as with Abelar’s brothers.
He had known all three appellants for several months. Don lived on Larkin Street. Robert Carlos Flores, known as “Droopy†or
“Creeper,†was a member of the Langdon gang, based in the San Fernando
Valley.
(ii) The murder of
Velasquez.
The People’s evidence regarding how the murder occurred came
primarily from three sources: the
testimony of Ginger Crousore, a local resident who observed part of the attack;
information provided by Flores during a recorded police interview; and the
in-court testimony of Don T.
name="_ftnref1" title="">[1] Taken together, that evidence established the
following. On November 17, 2010, at
approximately 8:00 p.m., Flores, Don, and Velasquez were walking down Larkin
Street. Flores spotted Ortega, Sabo, and
Abelar nearby. Earlier that evening,
appellants had “hit up†Flores, asking for his gang affiliation. Upon seeing appellants again, Flores said to
Velasquez, “ ‘I think that’s your enemies fool.’ †Velasquez said, “ ‘Man, I don’t give a fuck.’
†Velasquez rebuffed Flores’s suggestion
that he go inside, stating, “ ‘I’ll take them out.’ â€
Appellants approached and asked
Velasquez where he was from. Velasquez
responded that he was from SLS.
Appellants said they were from CKF and WTF, and said, “ ‘Fuck Slushies,’
†a derogatory term for SLS gang members.
Ortega then punched Velasquez, and Sabo and Abelar began “beating onâ€
him. Velasquez punched back, knocking
Ortega down. Don and Flores did not join
in the fray. Ortega pulled out a large
knife. Velasquez said, “ ‘Oh, shit, he’s
got a knife’ †and ran toward a field.
All three appellants chased Velasquez.
tackled him to the ground, and hit and kicked him. Ortega stabbed at Velasquez with the knife
several times, hitting him once in the chest.
Appellants split up and fled from
the scene. As Sabo and one of the others
fled, they came face to face with Crousore, who had walked outside to
investigate after hearing yelling and footsteps. Sabo glared at Crousore. Crousore overheard Sabo suggest they hide the
knife.
Velasquez, who was on the ground
between two cars, struggled to stand up, holding his torso. He walked to the middle of the street and
fell on his face, got up again, stumbled to the back of a truck, leaned on it,
and then slid to the ground. Crousore
called 911. Both she and Don went to
assist Velasquez, who was bleeding profusely.
An autopsy revealed that Velasquez
died of a stab wound to the heart, inflicted by a knife with a blade at least
three inches long. There were red marks
on his head and face, consistent with being punched or kicked.
(iii)
A “couple of days†after the killing, Crousoure was walking
to her home when she saw Sabo and two other men walking by. She overheard Sabo say, “ ‘I’m glad he’s
dead.’ â€
Crousoure identified Sabo as one of
the assailants in a photograph shown to her a few days before trial, and at
trial. Don identified all three
appellants at trial. Flores identified
photographs of all three appellants in his interview with police. Flores also provided descriptions of the
assailants.
Detectives arrested Abelar on
December 27, 2010. He had holes for
piercings in both ears and “snake bite†piercings in his lower lip, features
which matched Flores’s description of him.
He claimed he did not know Sabo or Ortega and stated he had been with
his girlfriend, Audelia Rivas, on the night of the murder. Detectives allowed Abelar to telephone his
mother and Rivas, and tapes of portions of those conversations were played for
the jury. Abelar told his mother to
throw away some blue shorts in his room.
He also asked her to call Rivas and tell her to get rid of some shirts
he had left at Rivas’s house. Abelar
told Rivas that if detectives called, she should tell them he had been at home
on a particular day. Rivas replied that
she was “sticking to our story.†Abelar
confirmed that his mother had text messaged Rivas about the shirts, and
admonished, “Do what she says about them things all right?†and “get rid of
them†that evening. Rivas told Abelar
that “One of them came back . . . trying to look for your phone.†Abelar advised Rivas to tell the person who
had the phone (apparently his sister), to remove the battery and “stash†or
“ditch[]†the phone.
On December 29, 2010, detectives
conducted a tape-recorded interview of Sabo, which was played for Sabo’s
jury. In that interview Sabo told
detectives that when his group encountered Velasquez, Don, and Flores on Larkin
Street, Ortega said to Velasquez, “ ‘Oh, you’re from SLS[.]’ †Velasquez replied affirmatively, and punched
Ortega, knocking him to the ground.
Ortega pulled out a knife. Abelar
punched Velasquez; Velasquez ran behind a truck; and Ortega chased and stabbed
him. Velasquez collapsed, and Ortega and
Abelar kicked and spat on him. Sabo
claimed he did not participate in the attack, but merely observed it.
(iv)
Los Angeles County Deputy Sheriff Anthony Delia testified
regarding the symbols and primary activities of the CKF and WTF gangs; various
predicate crimes committed by CKF gang members; and the gang affiliations of
appellants.
title="">[3] Members of a gang “cliqued up†with another
gang are obligated to assist the other gang’s members in a fight with, or
attack on, a rival gang member. In gang
culture, the question “ ‘where [are] you from,’ †is a
challenge. If a gang member uses a
derogatory name for a rival gang, he “disrespects†the questioner and violence
will likely ensue. A punch from a rival
gang member is highly disrespectful and will likely result in violence. “Respect†is of paramount importance in the
gang culture. A gang member who fails to
defend his gang’s honor will lose respect and could be beaten or killed by his
own gang. When presented with a
hypothetical based on the evidence, Delia opined that the murder was committed
for the benefit of, at the direction of, and in association with, the CKF gang.
b.
Defense evidence.
Ortega presented the following evidence. Detectives interviewed Don T. at the police
station, and allowed him to telephone his brother when they left the room. The call was recorded. Don and his brother agreed that Don would say
“Droopy from Langdon†had “snitched†on them.
Sabo presented evidence that he told
police during his interview that he was afraid of retaliation and did not want
to go to prison for a crime he did not commit.
Abelar did not present evidence.
2.
Procedure.
Trial was by jury in a single proceeding, with Sabo tried by
one jury (denominated the “gold juryâ€) and Ortega and Abelar tried by another
(denominated the “blue juryâ€). Ortega
and Abelar were found guilty of second degree murder (Pen. Code, § 187, subd.
(a)).
title="">[4] Their jury also found the murder was
committed for the benefit of, at the direction of, or in association with, a
criminal street gang. (§ 186.22, subd.
(b).) The trial court sentenced both
appellants to 15 years to life in prison.
Sabo’s jury found him guilty of voluntary manslaughter, a lesser
included offense to murder, and found the gang allegation not true. The trial court sentenced Sabo to a term of
11 years in prison. The court imposed
restitution fines, suspended parole restitution fines, court security fees, and
criminal conviction fees, on all defendants.
It also made appellants jointly and severally liable for payment of
direct victim restitution in the amount of $11,986.76. Ortega, Abelar, and Sabo appeal.
DISCUSSION
1. Evidentiary issues.
a.
Only relevant evidence is admissible. (Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay
declarant, having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.†(Evid. Code, § 210; People v. Mills (2010) 48 Cal.4th 158, 193; People v. Lee (2011) 51 Cal.4th 620, 642.) Relevant evidence may be excluded if its
probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury. (Evid. Code, § 352;
Lee, at p. 643; People v. Waidla (2000) 22 Cal.4th 690, 724.)
A trial court has broad discretion
in determining whether evidence is relevant and whether Evidence Code section
352 precludes its admission. (
at p. 195; People v. Williams (2008)
43 Cal.4th 584, 634.) We apply the abuse
of discretion standard to a trial court’s rulings on the admissibility of
evidence, including those turning on the relevance or probative value of the
evidence in question. (
643; People v. Hamilton (2009) 45 Cal.4th 863,
930.) The admission of relevant evidence
will not offend due process unless the evidence is so prejudicial as to render
the defendant’s trial fundamentally unfair.
(Hamilton, at p. 930;
439.)
b.
The trial court did not err by
excluding evidence of Ortega’s age; exclusion of the evidence was harmless.
Prior to opening statements, Ortega’s counsel sought a ruling
that evidence of Ortega’s age at the time of the crime, 16, was
admissible. Counsel averred that because
witnesses had included age estimates in their descriptions of the assailants,
“[a]ge is very important to who did what out there . . . .†The trial court opined that the witnesses’
descriptions of the suspects’ ages was clearly admissible, but evidence of
their actual ages was
irrelevant. Jurors could evaluate the
witnesses’ descriptions of the perpetrators by looking at the defendants in
court. Moreover, the trial court
reasoned that age estimates are subjective.
It explained: “I can estimate
your age. I may be way off. It doesn’t matter. What matters is if somebody matches the
description . . . .â€
The court acknowledged the People’s concern that the evidence was being
offered primarily to play upon the jury’s sympathies. It therefore excluded evidence of appellants’
actual ages.
Ortega contends the trial court’s
ruling was error. He points out that
Flores described the assailant who stabbed Velasquez as being between 21 and 22
years old. Given that he was 16, but
codefendants Sabo and Abelar were 21 and 23 years of age, respectively, he
argues that evidence of his actual age would have cast doubt on Flores’s
identification of him and would have tended to show one of the other defendants
was the person who stabbed Velasquez.
Therefore, exclusion of this evidence deprived him of his state and
federal rights to due process and a fair trial.
The People contend Ortega has
forfeited his federal due process claim because he did not make a specific
constitutional objection below. We
disagree. To the extent Ortega’s constitutional
claims do “not invoke facts or legal standards different from those the trial
court itself was asked to apply,†but merely assert that the trial court’s
purported error had the additional legal consequence of violating the
Constitution, his arguments have not been forfeited on appeal. (People
v. Garcia (2011) 52 Cal.4th 706, 755, fn. 27; People v. Partida, supra, 37 Cal.4th at pp. 435-436;
856, fn. 25.)
His claims lack merit, however. Evidence of Ortega’s age was potentially
prejudicial. The prejudice referred to
in Evidence Code section 352 applies to evidence that uniquely tends to evoke
an emotional bias and has very little effect on the issues. (People
v. Scott (2011) 52 Cal.4th 452, 491.)
Evidence of Ortega’s youth had the potential to evoke an emotional bias,
engendering sympathy for him based upon his age. On the other hand, as the court reasoned,
Ortega’s actual age was not particularly probative. The pertinent question was not how old Ortega
actually was, but how old he looked. Whether Ortega appeared to be around the age estimated by Flores, and whether he
looked older or younger than his codefendants, was a matter the jury could
easily evaluate simply by observing the defendants at trial. Accordingly, we cannot say the trial court
abused its discretion by excluding the evidence.
But even assuming arguendo that the
trial court erred, reversal is not warranted unless it is reasonably probable a
result more favorable to appellant would have been reached in the absence of
the error. (Evid. Code, § 354;
959, 1001; People v. Earp (1999) 20
Cal.4th 826, 878.) No such probability
exists here. As we have discussed,
jurors would have been able to evaluate whether Ortega or one of his
codefendants better matched Flores’s description of the knife-wielding
assailant by virtue of their in-court observations. Furthermore, the jury did not likely consider
Flores’s estimates of the assailants’ ages to be a crucial determinant in
establishing who stabbed Velasquez.
Flores gave detailed descriptions of all three assailants. The person who stabbed Velasquez was
approximately 5 feet 6 inches, 130 pounds, bald or with close-cropped
hair, no piercings, and nothing in his ears.
Flores stated he was unsure of the killer’s age, but believed he must
have been between 21 and 22 because of his abundance of thick, black facial
hair. The second assailant was over 6
feet tall, very thin, light-skinned, and approximately 17 or 18 years old. The third assailant had, among other things,
dime-sized “plugs†or gauges in his ears and “snake bite†piercings in his lip,
and was approximately 16 years old. When
arrested, Abelar sported “snake-bite†piercings of the lower lip and piercings
in both ears.
Given the distinguishing details
Flores provided about the trio, it is unlikely jurors would have thought Flores
misidentified Ortega or was confused about which of the defendants stabbed
Velasquez even if they had been aware Ortega was 16. Moreover, Flores identified all three men in
pretrial photographic lineups, and identified Ortega as the killer. Don T., who knew all three defendants prior
to the killing, also testified that Ortega had the knife. Jurors were unlikely to have viewed the
challenged evidence as significant to the accuracy of the identifications or
the question of which assailant stabbed Velasquez. Any error was harmless. (Evid. Code, § 354; People v. Richardson, supra, 43 Cal.4th at p. 1001;
836.)
c.
evidence of Abelar’s jailhouse telephone calls.
Prior to trial, Abelar objected to admission of his
“jailhouse†telephone calls to his mother and girlfriend on grounds the
evidence was unduly prejudicial under Evidence Code section 352. The trial court overruled the objection,
finding the evidence was highly probative and not prejudicial.
Abelar contends this was error, and
deprived him of his state and federal rights to due process and a fair
trial. He argues that the evidence
showed only that he “did not want to be associated with the crime scene, a
common human responseâ€; the jailhouse calls “did not prove him guilty beyond a
reasonable doubtâ€; and the evidence only tended to “bolster a weak prosecution
case.†In his view, “[d]issociation from
the scene of a crime does not equate with knowledge of guilt.â€
Abelar’s arguments are
meritless. The telephone calls were
highly probative on the issue of guilt and were not prejudicial. As detailed in our recitation of the facts
pair of blue shorts from his room and dispose of them. He told his girlfriend to take his shirts
from her house to his mother for disposal; provide him with an alibi; and make
sure that another female in possession of his telephone remove the battery and
“stash†the phone. Abelar’s attempts to
concoct a false alibi and dispose of potentially incriminating evidence
strongly demonstrated consciousness of guilt, and were highly probative. “Evidence the defendant used a false alibi is
relevant to prove consciousness of guilt.â€
(People v. Vu (2006) 143
Cal.App.4th 1009, 1029.) “ ‘[T]here can
be no question that evidence of such falsehoods is
admissible . . . .’ â€
(Ibid.) Abelar’s efforts to dispose of incriminating
evidence––his
clothing and the phone––likewise demonstrated consciousness of guilt. (See People
v. Vines (2011) 51 Cal.4th 830, 867 [an “accused’s efforts to suppress
evidence against himself indicate a consciousness of guiltâ€];
142 [“The inference of consciousness of guilt from . . . suppression of
evidence is one supported by common senseâ€]; People v. Williams (1997) 16 Cal.4th 153, 201; CALJIC
No. 2.06.)
Nor was the evidence
prejudicial. “ ‘ “ ‘Prejudice’
as contemplated by [Evidence Code] section 352 is not so sweeping as to include
any evidence the opponent finds inconvenient.
Evidence is not prejudicial, as that term is used in a section 352 context,
merely because it undermines the opponent’s position or shores up that of the
proponent.†’ †(
pp. 490-491.) “ ‘[P]rejudicial’ is
not synonymous with ‘damaging.’ †(
“evoked an emotional bias†against him, he fails to explain how. The trial court did not abuse its discretion
and the evidence was properly admitted.
2.
Abelar asserts that CALJIC No. 3.00, as given here, was
flawed because it incorrectly stated that an aider and abettor is “equally
guilty†as the direct perpetrator of a crime.
He urges that use of the instruction violated his federal
trial. We discern no prejudicial error.
a.
An aider and abettor’s liability for criminal conduct “is of
two kinds. First, an aider and abettor
with the necessary mental state is guilty of the intended crime. Second, under the natural and probable
consequences doctrine, an aider and abettor is guilty not only of the intended
crime, but also ‘for any other offense that was a “natural and probable
consequence†of the crime aided and abetted.’
[Citation.] Thus . . . if a person aids and abets only an intended
assault, but a murder results, that person may be guilty of that murder, even
if unintended, if it is a natural and probable consequence of the intended
assault.†(People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
Here, the People advanced both
theories. Accordingly, the trial court
instructed the jury with CALJIC Nos. 3.00, 3.01, and 3.02, regarding the
relevant principles. CALJIC
No. 3.00, as given to the jury, provided:
“Persons who are involved in committing a crime are referred to as
principals in that crime.
manner of participation is equally guilty. Principals include: [¶]
1. Those who directly and actively commit the act constituting the
crime, or [¶] 2. Those who aid and abet the commission of the crime. [¶]
When the crime charged is murder, the aider and abettor’s guilt is
determined by the combined acts of all the participants as well as that
person[’]s own mental state. If the
aider and abettor’s mental state is more culpable than that of the actual
perpetrator, that person’s guilt may be greater than that of the actual
perpetrator. Similarly, the aider and
abettor’s guilt may be less than the perpetrator’s, if the aider and abettor
has a less culpable mental state.â€
(Italics added.)
CALJIC No. 3.01 stated, in pertinent
part: “A person aids and abets the
commission of a crime when he or she:
[¶] (1) With knowledge of the
unlawful purpose of the perpetrator, and [¶] (2) With the intent or
purpose of committing or encouraging or facilitating the commission of the
crime, and [¶] (3) By act or advice, aids, promotes, encourages or
instigates the commission of the crime.â€
CALJIC No. 3.02 instructed jurors on
the natural and probable consequences doctrine.
b.
Applicable legal principles.
In People v. McCoy,
supra, 25 Cal.4th 1111, the California Supreme Court held that an aider and
abettor may be found guilty of greater homicide-related offenses than those
committed by the actual perpetrator. (
abettor’s guilt is “based on a combination of the direct perpetrator’s acts and
the aider and abettor’s own acts and
culpable than the actual perpetrator’s.
(Id. at p. 1120.)
In People v. Samaniego (2009) 172 Cal.App.4th 1148, the jury was
instructed on aider and abettor liability with CALCRIM No. 400, as
follows: “ ‘A person may be guilty of a
crime in two ways. One, he or she may
have directly committed the crime. . . . Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime.
A person is equally guilty of
the crime whether he or she committed it personally or aided and abetted the
perpetrator who committed it.’ †(
erroneous. Under
direct perpetrator, but the instruction failed to so inform the jury. (Id. at
pp. 1164-1165.) “Consequently, CALCRIM
No. 400’s direction that ‘[a] person is equally
guilty of the crime [of which the perpetrator is guilty] whether he or she
committed it personally or aided and abetted the perpetrator who committed
it’ . . . , while generally correct in all but the most
exceptional circumstances, is misleading here and should have been
modified.†(Samaniego, at
p. 1165.)
In
People v. Nero, supra, 181
Cal.App.4th 504, we concluded use of an instruction containing similar “equally
guilty†language was prejudicial error.
There, the defendants, a brother and sister, were convicted of second
degree murder after the brother stabbed a man to death during an
altercation. The People’s theory was
that the sister aided and abetted the crime by handing her brother the knife
during the fight. The brother testified
that his sister did not hand him the knife; instead he obtained it from the
victim during the fight. (
3.00, which included the following statements: “ ‘Persons who are involved
in committing or attempting to commit a crime are referred to as principals in
that crime. Each principal, regardless of the extent or manner of participation, is
equally guilty.’ †(Nero,
p. 510.) During deliberations, the jury
asked if it could find the sister guilty of a lesser homicide-related offense
than the brother. (Id. at pp. 509, 512.)
The court responded by rereading CALJIC No. 3.00, including the “equally
guilty†language. The jury found both defendants
guilty of second degree murder. (
Relying
on McCoy and Samaniego, we reasoned that an aider and abettor could be found
guilty of a lesser homicide-related offense than that committed by the actual
perpetrator. (People v. Nero, supra, 181 Cal.App.4th at pp. 513, 517.)
explained that an “aider and abettor’s mens rea is personal, [and] . . . may be
different than the direct perpetrator’s.â€
(Id. at p. 514.) Thus, we held that “even in unexceptional
circumstances CALJIC No. 3.00 and CALCRIM No. 400 can be misleading.†(Nero,
at pp. 518, 520; see also People v.
Loza (2012) 207 Cal.App.4th 332, 351-352.)
Subsequently,
People v. Canizalez (2011) 197
Cal.App.4th 832, concluded that when aider and abettor liability is premised on
the natural and probable consequences doctrine, it is not error to instruct
that the perpetrator and an aider and abettor are equally guilty. (Id. at
p. 852.) Canizalez observed that neither McCoy
nor Samaniego involved the
natural and probable consequences doctrine.
(People v. McCoy, supra, 25
Cal.4th at pp. 1117-1118; Canizalez,
and probable consequences doctrine for a nontarget, or unintended, offense
committed in the course of committing a target offense has a different
theoretical underpinning than aiding and abetting a target crime. Aider and abettor culpability for the target
offense is based upon the intent of the aider and abettor to assist the direct
perpetrator commit the target offense.
By its very nature, aider and abettor culpability under the natural and
probable consequences doctrine is not premised upon the intention of the aider
and abettor to commit the nontarget offense because the nontarget offense was
not intended at all. . . . Because the
nontarget offense is unintended, the mens rea of the aider and abettor with
respect to that offense is irrelevant and culpability is imposed simply because
a reasonable person could have foreseen the commission of the nontarget
crime. It follows that the aider and
abettor will always be ‘equally guilty’ with the direct perpetrator of an
unintended crime that is the natural and probable consequence of the intended
crime.†(Id. at p. 852.) Accordingly,
the “equally guilty†language “is a correct statement of the law when applied
to natural and probable consequences aider and abettor culpability.†(Ibid.)
c. Discussion.
Preliminarily, the People argue
that appellant has forfeited this contention because he failed to object or
request modification below. (See, e.g.,
586, 624; People v. Loza, supra, 207
Cal.App.4th at p. 350.) However,
the rule of forfeiture does not apply where the instruction given was wrong, or
where an error affects the defendant’s substantial rights. (People v. Hudson (2006)
38 Cal.4th 1002, 1012; People v. Anderson
(2007) 152 Cal.App.4th 919, 927; § 1259.)
In light of our conclusion in Nero
that the “equally guilty†language could be confusing even under
unexceptional circumstances, we consider the merits of Abelar’s
contention. (People v. Salcido (2008) 44 Cal.4th 93, 155.)
Use of the “equally guilty†language
was not prejudicial error here for several reasons. First, the instruction given to Abelar’s jury
was quite different than the instructions found defective in
Samaniego, and similar
cases. It included clear statements that
an aider and abettor’s guilt may be either greater or lesser than the actual
perpetrator’s. Thus, it accurately
informed the jury of the relevant legal principles, largely obviating the
concerns expressed in Nero and
Despite the “equally guilty†language, a reasonable juror would have
been unlikely to miss the point that an aider and abettor’s mens rea is
personal and may be different than the direct perpetrator’s. To the extent the “equally guilty†language applied to
determination of guilt under the natural and probable consequences theory, it
was not erroneous. (People v. Canizalez, supra, 197 Cal.App.4th at p. 852.)
Abelar, however, argues that the
instruction was confusing because it contained both correct and incorrect
statements of the law. He posits that it
is “impossible to tell†which portion of the instruction the jury
followed. Assuming arguendo that the
instruction was ambiguous, we discern no prejudice. When reviewing ambiguous or conflicting
instructions, “we inquire whether the jury was ‘reasonably likely’ to have
construed them in a manner that violates the defendant’s rights. [Citation.]â€
(People v. Rogers (2006) 39
Cal.4th 826, 873; People v. Harrison
(2005) 35 Cal.4th 208, 251–252.)
Reversal is not required unless there is a reasonable likelihood jurors
misunderstood or misapplied the pertinent instruction. (People
v. Iboa (2012) 207 Cal.App.4th 111, 121; People v. Flood (1998) 18 Cal.4th 470, 490.) Where an instruction omits or misdescribes an
element of a charged offense, it violates the right to jury trial and is
measured against the Chapman harmless
error test. (People v. Nero, supra, 181 Cal.App.4th at pp. 518-519;
18, 24.)
Under either standard, any error was
not prejudicial here. The accurate
information in CALJIC No. 3.00 that an aider and abettor could have a more, or
less, culpable mental state than a direct perpetrator, coupled with other
instructions stating that an aider and abettor must act with knowledge of the
perpetrator’s unlawful purpose and with the intent to facilitate or commit the
crime, made it unlikely jurors would have construed the “equally guiltyâ€
language to preclude separate consideration of Abelar’s mens rea. (See People
v. Mejia, supra, 211 Cal.App.4th at p. 625.)
Furthermore, unlike in Nero and People v. Loza,
supra, 207 Cal.App.4th 332, there was no indication the jury was actually
confused about the elements of aiding and abetting liability or the requisite
mental states. In contrast to those
cases, Abelar’s jury did not pose questions indicating confusion, nor did the
trial court give inadequate or misleading responses to jury questions. (See People
v. Nero, supra, 181 Cal.App.4th
at pp. 349, 354-355; People v.
Mejia, supra, 211 Cal.App.4th at p. 625; see generally
1106, 1119.)
Finally, as we discuss in regard to
the sufficiency of the evidence post, there
was ample evidence to prove Abelar was guilty of second degree murder. The fact the jury that tried Sabo convicted
him of the lesser offense of voluntary manslaughter does not compel a different
conclusion. The gold jury was instructed
with the same version of CALJIC No. 3.00 as was Abelar’s blue jury. While Sabo’s verdict indicates his jury took
a different view of the evidence, nothing indicates the different verdicts were
based upon a misreading of the instructions.
Abelar’s argument to the contrary is speculative.
3.
The evidence was sufficient to
prove Abelar committed second degree murder.
Abelar asserts that the evidence was insufficient to prove
second degree murder, but instead showed, at most, voluntary manslaughter.
When determining whether the
evidence was sufficient to sustain a criminal conviction, “we review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence––that is, evidence that is reasonable,
credible and of solid value––from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citations.]†(
43, 66; People v. Houston (2012) 54
Cal.4th 1186, 1215; People v. Elliott (2012)
53 Cal.4th 535, 585.) We presume in
support of the judgment the existence of every fact the trier of fact could
reasonably deduce from the evidence. (
919.) Reversal is not warranted unless
it appears “ ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’
[Citation.]†(
331; People v. Zamudio (2008) 43
Cal.4th 327, 357.)
Murder is
the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a); People v. Manriquez (2005) 37 Cal.4th 547, 583;
Cal.App.4th at p. 842.) “ ‘Second degree murder is
the unlawful killing of a human being with malice, but without the additional
elements . . . that would support a conviction of first degree
murder. [Citations.]’ †(People
v. Taylor (2010) 48 Cal.4th 574, 623.)
Malice may be express or implied.
(Id. at pp. 623-624.) “Malice
will be implied ‘when the killing results from an intentional act, the natural
consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.
[Citations.]’ [Citations.]†(Ibid.;
People v. Knoller (2007) 41 Cal.4th
139, 151-152; Canizalez,
aids and abets criminal conduct is guilty of not only the intended crime
[target offense] but also of any other crime the perpetrator actually commits
[nontarget offense] that is a natural and probable consequence of the intended
crime. The latter question is not
whether the aider and abettor actually
foresaw the additional crime, but whether, judged objectively, it was
consequences doctrine ‘is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense
was a reasonably foreseeable consequence of the act aided and abetted.’ [Citation.]â€
(People v. Medina, supra, 46
Cal.4th at p. 920.)
Viewing the evidence in the
light most favorable to the verdict (People
v. Gonzalez (2012) 54 Cal.4th 643, 653), there was ample evidence to establish Abelar was
guilty of second degree murder. There
was ample evidence to prove Abelar committed the target crime of assault on the
victim; he chased, punched, and kicked him.
There was ample evidence to prove Ortega committed murder, either under
an implied or express malice theory: he
stabbed the victim in the heart. There
was likewise ample evidence to show such a killing was a natural and probable
consequence of the gang-related assault.
The victim and Abelar, Ortega, and Sabo were members of rival
gangs. The murder occurred in territory
claimed by both gangs. When appellants
saw Velasquez on the street, they issued a gang challenge and made a derogatory
reference to Velasquez’s gang. They then commenced a physical attack on
him. In light of the gang expert’s
testimony regarding the likely ramifications of such a gang encounter, a
reasonable jury could easily have found that murder was a natural and probable
consequence of the attack on the victim.
People
v. Medina, supra, 46 Cal.4th 913, is instructive. There the defendants, Medina, Marron, and
Vallejo, made gang-related comments to the victim, Barba, after encountering
him on a porch outside a party. Much
like the situation here, the defendants asked Barba where he was from; Barba
replied with the name of his gang, Sanfer; Vallejo stated the name of his own
gang, Lil Watts; and Vallejo punched Barba.
A fight ensued in which the outnumbered Barba managed to hold his
own. The homeowner broke up the fight
and escorted Barba to his waiting car.
As Barba was driving away, Medina shot him in the head, killing
him. (Id. at pp. 916-917.) A jury
convicted all three men of, inter alia, first degree murder. An appellate court reversed Marron’s and
Vallejo’s convictions on the ground there was insufficient evidence that the
nontarget crime of murder was a reasonably foreseeable consequence of simple
assault. (Id. at p. 919.) The
California Supreme Court reversed, holding that a rational trier of fact could
have concluded the shooting was a reasonably foreseeable consequence of a gang
assault, even though there was no evidence the Sanfer and Lil Watts gangs had
an ongoing rivalry, no showing Vallejo and Marron knew Medina was armed, and
the fight and the shooting were not a single, uninterrupted event. (Id. at
pp. 916, 921-923.) In “the gang context,
it was not necessary for there to have been a prior discussion of or agreement
to a shooting, or for a gang member to have known a fellow gang member was in
fact armed,†in order for the killing to be a natural and probable consequence
of the assault. (Id. at p. 924.)
The instant case is factually
similar to Medina, but presents a
stronger evidentiary showing. Here,
evidence showed the assailants’ and victim’s gangs were rivals; that Abelar
must have known, at least at the point he pursued the victim, that Ortega had a
knife; and the incident was a single, uninterrupted event. The evidence was sufficient.
v. Medina, supra, 46 Cal.4th at pp. 921-922 and cases cited therein;
1050, 1055-1056 [escalating violence is a foreseeable consequence in gang confrontations].)
Abelar’s arguments to the contrary
are not persuasive. He complains that
the evidence identifying him as one of the assailants was weak, and the
evidence regarding who did what during the attack was contradictory. These arguments amount to a request that this
court reweigh the evidence. “ ‘[I]t is not a proper appellate function to
reassess the credibility of the witnesses.’
[Citation.]†(
41; People v. Cortes (1999) 71
Cal.App.4th 62, 81 [where an appellant “merely reargues the evidence in a way
more appropriate for trial than for appeal,†we are bound by the trier of
fact’s determination].) It is the
exclusive province of the trier of fact to determine the truth or falsity of
the facts upon which a determination of guilt depends, and we resolve neither
credibility issues nor evidentiary conflicts.
(People v. Maury (2003) 30
Cal.4th 342, 403; People v. Mejia
(2007) 155 Cal.App.4th 86, 98.)
Abelar also appears to argue that
the only verdict possible was voluntary manslaughter on a heat of passion
theory, given that the gold jury convicted Sabo of this lesser offense. He is incorrect. The fact the evidence might have been
reconciled with a contrary finding does not warrant a reversal. (People
v. Livingston (2012) 53 Cal.4th 1145, 1170; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) That Sabo’s jury came to a different
conclusion does not demonstrate insufficiency of the evidence. For one thing, Sabo’s jury heard somewhat
different evidence than Abelar’s. In any
event, “Occasional inconsistent jury verdicts are inevitable in our criminal
justice system. If a verdict regarding
one participant in alleged criminal conduct is inconsistent with other
verdicts, all of the verdicts may stand.
[Citations.] Accordingly, a
verdict regarding one defendant has no effect on the trial of a different
defendant.†(People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 5;
U.S. 10, 25-26.)
4.
Ortega’s sentence of 15 years to
life in prison does not amount to cruel or unusual punishment.
As noted, the trial court sentenced Ortega to a term of 15
years to life in prison. He argues that
this sentence amounts to cruel and unusual punishment under the state and federal
constitutions in light of the fact he was 16 years old when he committed the
crime.
The People argue that because Ortega
failed to raise this claim below, he has forfeited it on appeal. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 229-230;
1033, 1045; People v. Em (2009) 171
Cal.App.4th 964, 971, fn. 5.) However,
because Ortega relies on case law that post-dates
his sentencing, we consider his contention.
Ortega’s contention fails on the
merits. The statutory penalty for
second degree murder is 15 years to life in prison. (§ 190, subd. (a).) A statutorily mandated punishment may violate
the constitutional prohibition on cruel or unusual punishment, but “[b]ecause choosing the appropriate penalty
is a legislative weighing function involving the seriousness of the crime and
policy factors, the courts should not intervene unless the prescribed
punishment is out of proportion to the crime.â€
(People v. Felix (2003) 108 Cal.App.4th 994, 999-1000.) Whether a
punishment is cruel or unusual is a question of law, but we review the
underlying facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98
Cal.App.4th 354, 358; People v. Em, supra, 171 Cal.App.4th at p. 971.)
A sentence
violates the federal Constitution only if it is “grossly disproportionate†to
the severity of the crime. (U.S. Const.,
8th Amend.; Graham v. Florida (2010)
__ U.S.__ [130 S.Ct. 2011, 2021] (
“although not cruel or unusual in its method, it is so disproportionate to the
crime for which it is inflicted that it shocks the conscience and offends
fundamental notions of human dignity.†(
fn. omitted; People v. Dillon (1983) 34 Cal.3d 441, 478; People v. Haller (2009) 174 Cal.App.4th 1080, 1092;
(1) examine the nature of the offense and the offender; (2) compare
the punishment with that prescribed for more serious crimes in California; and
(3) compare the punishment with that given for the same offense in other
jurisdictions.
name="_ftnref9" title="">[9] (In re
Lynch, at pp. 425-427; Em, at
p. 972; People v. Martinez
(1999) 71 Cal.App.4th 1502, 1510.) We
consider the seriousness of the crime in the abstract and the totality of the
circumstances surrounding its commission, including motive, manner of
commission, the extent of the defendant’s involvement, the consequences of his
acts, and factors such as age, prior criminality, personal
characteristics, and state of mind. (Em, at p. 972; Dillon, at p. 479;
Cal.App.4th at p. 1000; Martinez,
at p. 1510.) A defendant must overcome a
considerable burden to show a sentence is disproportionate to his or her level
of culpability, and findings of disproportionality have occurred “ ‘with
exquisite rarity in the case law.’ â€
(Em, at p. 972.)
Nothing about the nature of
the offense suggests Ortega’s sentence is disproportionate. Ortega committed second degree murder, one of
the most serious offenses possible. (See
People v. Em, supra, 171 Cal.App.4th
at p. 972.) Ortega was a gang member,
and the murder was committed for the most incomprehensible and trivial of
motives: to further mindless gang
violence. The crime was callous and
brutal. He and his cohorts chased and
attacked an outnumbered victim simply because he was a rival gang member. The method of killing––plunging a knife into the
victim’s chest after the group surrounded and beat him––was vicious. The consequences were extreme: the death of another human being. The use of a deadly weapon by a gang member
in the commission of the crime presents a significant danger to society. (Ibid.) Nothing about the nature of the offense
suggests a 15-years-to-life sentence is in any way disproportionate.
Ortega suffered a sustained juvenile
petition for grand theft in 2008, and was on probation for that offense when he
committed the instant crime. He was a
self-admitted gang member. He was the
actual killer. The record is devoid of
evidence that Ortega’s personal characteristics or state of mind demonstrate
disproportionality.
Ortega hinges his constitutional
claims entirely upon the fact he was 16 years old when he committed the
crime. “When considering whether a
sentence is cruel or unusual punishment, the defendant’s age matters. [Citation.]
It is also manifestly true, however, that murder matters.†(People
v. Em, supra, 171 Cal.App.4th at p. 976.)
By the age of 16, Ortega was already an active gang member with a
criminal record. When balanced against
the seriousness of the crime, his active participation in the gang, and the
danger he presents to society, we cannot say the mere fact he was 16 years old
demonstrates his sentence is unconstitutionally disproportionate.
Ortega’s citation to authority
addressing life without parole (LWOP) sentences for juveniles does not assist
him. In Roper v. Simmons (2005) 543 U.S. 551, the United States Supreme
Court held that the Eighth Amendment prohibits imposition of the death penalty
for crimes committed when the offender was under 18. (Id.
at p. 568.) The court reasoned that
juveniles could not reliably be classified among the worst offenders because
they are less mature and responsible than adults and act more recklessly; they
are more susceptible to negative influences and pressures; and a juvenile’s
character is not as well formed as an adult’s.
(Id. at pp. 569-570.) Subsequently, Graham held that imposing a life-without-possibility-of-parole
sentence on a juvenile offender for a nonhomicide offense also violates the
Eighth Amendment: “A State need not
guarantee the offender eventual release, but if it imposes a sentence of life it
must provide him or her with some realistic opportunity to obtain release
before the end of that term.†(
2034.) Recently, the court held that
“the Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders,†even for those found
guilty of homicide, although a court might, in its discretion, impose such a
punishment. (Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455, 2469].)
Based on these cases, our California
Supreme Court has concluded that “sentencing a juvenile offender for a
nonhomicide offense to a term of years with a parole eligibility date that
falls outside the juvenile offender’s natural life expectancy constitutes cruel
and unusual punishment in violation of the Eighth Amendment.†(People
v. Caballero (2012) 55 Cal.4th 262, 268.)
Caballero held that a sentence
rendering the juvenile defendant, who had committed attempted murder,
ineligible for parole for over 100 years was unconstitutional. (Id. at
p. 268; see also People v. Mendez
(2010) 188 Cal.App.4th 47, 50-51, 62-63 [84-years-to-life sentence was the
equivalent of life without parole and therefore cruel and unusual
punishment].) A state must provide a
juvenile offender “ ‘with some realistic opportunity to obtain release’
from prison during his or her expected lifetime. [Citation.]â€
(Caballero, at p. 268.)
None of these authorities support a
finding of unconstitutionality here.
Ortega has not been sentenced to death or LWOP, nor is his sentence the
equivalent of life without parole. He
will be eligible for parole in 15 years, when he is approximately 33. Thus, he has a realistic opportunity to
obtain release during his lifetime. (See
People v. Perez (2013) 214
Cal.App.4th 49, 52, 58 [“Miller,
a substantial life expectancy after prisonâ€; eligibility for parole at age 47
is not the equivalent of an LWOP term].)
While acknowledging that the federal
cases do not “bar the sort of sentencing scheme used here,†Ortega nonetheless
attempts to expand their reach. He
asserts that, by mandating the same 15-years-to-life term for juveniles and
adults, section 190 precludes a court from considering a juvenile’s lessened
culpability and greater capacity for change.
Ortega posits that California’s homicide sentencing scheme therefore
“runs afoul of the evolving standards of decency set forth in
People
v. Perez, supra, 214 Cal.App.4th 49, recently rejected similar
arguments. There the appellant argued
that the “one strike†law was unconstitutional as applied to minors because it
deprived trial courts of the discretion to take into account the unique
qualities of juveniles. (
this argument “overstate[d] the scope of the Roper-Graham-Miller-Caballero line.†(Id. at
p. 59.) Perez reasoned that the appellant’s argument was essentially a
request for “a judicially imposed rule of mandatory discretion, namely that no
matter how heinous the crime—or how mild the penalty otherwise imposed on
adults—the federal and state cruel and unusual punishment clauses require
states to hold out some possibility of discretionary reduction in that penalty
to take into account an offender’s youth.â€
(Ibid., italics omitted
This question is “properly addressed to the Legislature†and “no high
court has articulated a rule that all
minors who commit adult crimes and who would otherwise be sentenced as adults
discretionary reduction in their sentence by the trial court to account for
their youth.†(Ibid.) Perez’s reasoning is
sound, and equally applicable here.
5.
Wende review of the record
in Sabo’s case.
After examination of the record,
appointed counsel for appellant Sabo filed an opening brief which raised no
issues and requested this court to conduct an independent review of the record.
By notice filed November 5, 2012,
the clerk of this court advised Sabo to submit within 30 days any contentions,
grounds of appeal or arguments he wished this court to consider. No response has been received to date.
We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 265, 278-284;
443.)
DISPOSITION
The judgments are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
made in his police interview. He denied
seeing what happened, and claimed he had lied to police when he identified
appellants. Don admitted repeatedly
lying to police prior to trial out of fear of becoming involved.
name="_ftn2" title="">[2] According
to portions of Don T.’s trial testimony, Sabo did not participate in chasing or
beating Velasquez.
