P. v. Betancourt
Filed 3/11/13 P. v. Betancourt CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDDIE BETANCOURT et al.,
Defendants and Appellants.
B237204
(Los Angeles
County
Super. Ct.
No. NA079324)
APPEAL from
a judgment of the Superior Court
of
County.
Joan Cassini, Judge.
Affirmed as modified.
Stephen
Temko, under appointment by the Court of Appeal, for Defendant and Appellant
Eddie Betancourt.
Brett Harding Duxbury, under appointment
by the Court of Appeal, for Defendant and Appellant Said Riley.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________
Appellants
Eddie Betancourt and Said Riley were convicted, following a jury trial, of one
count of first degree murder and one count
of second murder, both in violation of Penal Code section 187, subdivision (a),
degree robbery in violation of section 211.
The jury convicted Riley of an additional count of second degree
robbery. The jury found true the special
circumstance allegation that appellants were convicted of more than one offense
of murder in the current proceeding within the meaning of section 190.2,
subdivision (a)(3). The jury also found
true the allegations that Betancourt personally and intentionally discharged a
firearm, causing great bodily injury and death within the meaning of section
12022.53, subdivisions (b), (c) and (d) in the commission of the first degree
murder and personally and intentionally used and discharged a firearm within the
meaning of section 12022.53, subdivisions (b) and (c) in the commission of the
second degree murder. The jury found the
section 12022.53 allegations not true as to Riley. The jury found true as to both appellants the
allegations that a principal was armed with a firearm within the meaning of
section 12022, subdivision (a)(1) in the commission of the murders. The jury found the section 12022, subdivision
(a)(1) allegations not true for the robberies.
Riley admitted that he had suffered a prior serious felony conviction
within the meaning of section 667, subdivision (a)(1) and the "Three
Strikes" law, and had served a prior prison term within the meaning of
section 667.5, subdivision (b).
The trial
court sentenced Betancourt to life without the possibility of parole for the
first degree murder pursuant to section 190.2, plus an enhancement term of 25
years to life pursuant to section 12022.53, subdivision (d), plus one year for
the robbery conviction. The court sentenced
Betancourt to a concurrent term of life without the possibility of parole for
the second degree murder pursuant to section 190.2, plus a 20-year enhancement
term pursuant to section 12022.53, subdivision (c). All remaining enhancements were stayed.
The trial
court sentenced Riley to life without the possibility of parole for the first
degree murder, doubled pursuant to the Three Strikes law, plus a one-year
enhancement term pursuant to section 12022, subdivision (a)(1). The court sentenced Riley to a concurrent
term of life without the possibility of parole, doubled pursuant to the Three
Strikes law for the second degree murder conviction. The court imposed a consecutive sentence of
nine years in state prison for the robbery convictions, consisting of the
midterm of one year for each robbery, doubled to two years pursuant to the
Three Strikes law, plus one five-year enhancement term for the section 667,
subdivision (a) enhancement. All
remaining enhancements were stayed.
Appellants
appeal from the judgment of conviction. Betancourt contends that the evidence is
legally insufficient to support his second degree murder conviction, the trial
court erred in instructing the jury on felony murder and the special
circumstances allegation and in failing to instruct the jury on aiding and
abetting under the natural and probable consequences doctrine. Riley contends that the murder special
circumstance allegation must be reversed because he was convicted of second
degree murder under an implied malice fetal murder theory, and further contends
that the trial court erred in instructing the jury on felony murder and the
special circumstances allegation. Riley
additionally makes a number of claims of sentencing
error by the trial court.
We make
various corrections to appellants' sentences, as set forth in more detail in
the disposition. We affirm the judgment
of conviction in all other respects.
Facts
1. Robberies
On April
11, 2008, Joshua Lozano lived in an apartment in San Pedro with Riley and
Robert Camacho. At some point, Lozano,
Riley, and Camacho got into a car and drove towards the area of Mesa and Ninth
Street. There, Riley and Camacho got out
of the car, while Lozano waited in his car.
Lozano knew that a robbery was planned.
Riley typically "called the shots of what went on." Riley and Camacho approached Calixto Delfino
who was selling ice cream from a cart.
Delfino saw an object that might have been a gun in Riley's waistband,
and ran away. After awhile, Delfino
turned around and saw Riley running away with Delfino's ice cream cart. There was approximately $30 in the cart.
Riley and
Camacho returned to Lozano's car with an ice cream cart. They attempted to place the cart in the back
of Lozano's Explorer. When they could
not get the cart in, they got into the Explorer. Lozano drove away.
On April
22, 2008, Sean Richards was driving around San Pedro when he saw Riley and
Alberto Fernandez, whom he had known since the sixth grade. He also saw Fernandez's cousin, Betancourt,
whom he had known since the summer of 2008.
Richards pulled over and volunteered to give the men a ride. After the men got into the car, Riley stated
that he wanted to rob somebody. He
displayed a .22 caliber revolver.
Richards was frightened and drove the men around.
At one
point, Riley directed Richards to stop the car; appellants and Fernandez then
exited the vehicle. Riley told Richards
to wait for them up the street.
Appellants and Fernandez approached Leonel Jiminez, a delivery man for
the Jolly Burrito restaurant. Riley
grabbed Jimenez by the neck, hit Jiminez in the mid-torso area, and kneed
Jiminez. One of the men lifted up his
shirt and displayed something that placed Jimenez in fear. The men took Jiminez's money, his cellular
telephone, and some food.
Appellants and Fernandez eventually
ran back to Richards's car and got inside.
Riley asked Richards to take them to Riley's house. Richards drove the men to an address near Eighth
Street and Pacific in San Pedro and stopped in a nearby alley. Appellants and Fernandez got out of the car
and went into the apartment complex.
Los Angeles Police Detectives
Antonio Zamora and Patricia Guerra were in an unmarked police car in the
alley. Guerra had been working on a
string of robberies against street vendors and restaurant delivery workers in
the area. Richards's vehicle caught
Zamora's attention because it had four males who appeared to be in a hurry to
get inside the residence and because they "kind of fit the general
description" of the persons who had committed robberies in the area.
On April 24, 2008, the police
stopped Richards as he was driving.
Richards was transported to the police station, where he was interviewed
by the police. He told the police about
what had happened on April 22, 2008.
Richards also told the police that Riley had a .22 caliber gun and had
pointed it at him.
2.
The Murder Of Lauri Gilbert And Baby Girl Gilbert
In April 2008, Lauri Gilbert was
living in an apartment complex on South Pacific Avenue in San Pedro. Riley lived in the apartment next door.
About three days before Gilbert's
April 24 murder, Riley or Betancourt told Redonia Smith that Gilbert owed him
money. Riley told Smith that if Gilbert
did not pay him, he would "pop her in the mouth." Smith told Riley and his companions that
Gilbert was pregnant and they should leave her alone. Smith was using crack cocaine at the time.
Late in the evening of April 23,
2008, James Davis was having beers in Lauri Gilbert's apartment. At some point, someone knocked on Gilbert's
door. After Gilbert spoke with the
person, she asked Davis if he could give her a ride. Davis agreed.
Smith, who was on the stairs of the
apartment complex when Gilbert left, told Gilbert that Riley wanted his money
and that Gilbert needed to pay him.
Smith heard Gilbert telling some guys she knew where to get some
drugs. Gilbert had problems with drugs. Smith told Gilbert not to get involved with
the guys.
Davis, Gilbert, and appellants walked
to Davis's gold two-door Acura Legend, which was parked in the alley. Davis drove to an alley behind a library and
parked the car. Gilbert got out of the
vehicle and went down the alley. Davis
and Betancourt got out of the car and smoked a cigarette.
Gilbert returned and everyone got
back into the car. Betancourt took out a
scale and weighed something. Someone
said, "it was short." Riley
told Gilbert to call the person she had obtained the drugs from and to tell him
that "it was short." Appellants
appeared to be upset. Gilbert made a
call. She said that the seller was at a
Jack-in-the-Box and would "make up the difference or bring some more or
something." Riley told Davis to
drive to the Jack-in-the-Box. There,
they waited but nothing happened. Riley
appeared to be upset.
Eventually, Riley said they should
return to the apartment. Davis drove
back to Gilbert's apartment complex and parked in the alley. Davis and appellants got out of the car. Gilbert remained in the car, in the front passenger
seat. Davis walked to the rear of the
vehicle. Davis could not remember
Riley's exact location. Betancourt
pulled out a gun and pointed it at Gilbert, who was sitting in the car
approximately two feet or three feet away.
Davis heard the sound of a gunshot and ran away.
As Davis ran, he heard two
additional shots close together. Davis
ran to his house. Once there, he called
911 and told them what had happened.
Peggy Skaggs, who lived in
apartment 212, was awakened by her dog and then heard the sound of three
gunshots. There was a pause between the
first and second gunshot, but not between the second and third. Skaggs heard the back gate to the apartment
complex open and then close. She then
heard footsteps running down the hallway and up the steps near her
apartment. Skaggs looked through her
peephole or her open door and saw Betancourt and another male from apartment
202 going down the hallway and around a corner towards their apartment. Later, Skaggs looked out her window and saw
one man go down the stairs leading to the back alley.
Smith was on the front stairs of
the apartment complex smoking crack cocaine when Gilbert was killed. He heard one shot, followed a few seconds
later by two or three shots. Smith left
through the front gate and went home.
On April 24, 2008, about 3:30 a.m.,
Los Angeles Police Officer Chris Panozzo responded to a report of shots fired
in the area of Pacific and Eighth Street.
Panozzo was eventually directed to a nearby alley. There, Sergeant Caswell was standing near a
gold two-door Acura in the alley.
Gilbert was in the right front passenger seat of the car, with one leg
sticking out of the open passenger door.
She appeared to have gunshot wounds to the head.
Brenda Shafer, an investigator from
the coroner's office, arrived at the murder scene at 7:30 a.m. At that time, Gilbert was seated in the
passenger seat of an Acura. The seat was
in a reclined position, the passenger door was open, and the passenger window
was up and still intact. Gilbert was
face-down on the seat, her right foot was on the pavement, and her left foot
was inside the vehicle. Shafer did a
preliminary examination of Gilbert's body at the scene and noticed what
appeared to be gunshot wounds to the head, but no other obvious signs of
trauma.
The police searched the area and
did not find any shell casings. There
did not appear to be any kind of damage to nearby walls from any expended
bullets. After Gilbert's body was
removed from the Acura, Los Angeles Police Detective Antonio Batres looked
inside the vehicle and noticed a set of keys on the floorboard. Batres used the keys to enter Gilbert's
apartment on South Pacific.
Batres had received information
that possible suspects had entered the apartment next to Gilbert's. The police eventually received consent to
search apartment 202. Los Angeles Police
Detective David Alvarez found a .22 caliber casing on a landing outside an open
window.
At some point, the police came and
interviewed Davis. During the interview,
Davis mentioned that Betancourt had smoked a menthol cigarette at another
location, and took police to that location.
Los Angeles Police Detective David Cortez searched the location and
found a menthol cigarette butt and a regular cigarette butt at the
location. He collected the butts. The cigarettes were analyzed for DNA. The DNA from one of the cigarettes matched
Betancourt's DNA.
On April 24, 2008, Los Angeles
Police Detective David Alvarez examined the Acura, which had been
impounded. Alvarez did not find any
bullet holes in the car, expended bullets, or any bullet casings. None of the windows of the car were
shattered.
James Davis was later brought to
inspect the car. Davis pointed to a
purple or maroon hat that was on the floor of the car and said it belonged to
Gilbert. The hat had a bullet hole in it
and a bullet fragment.
Deputy Medical Examiner Yulai Wang
conducted the autopsy of Gilbert and her female fetus. Gilbert died from three gunshot wounds to the
head. Wang recovered three bullets from Gilbert's
head. One bullet hit the right side of
Gilbert's head, close to the top of the head, and was lodged in the skull. Because the bullet did not penetrate the
skull, a person might still be able to move or talk if that was the only
gunshot wound she sustained; however the wound might also render a person
unconscious. Although a person might
survive such a gunshot wound, the person might also not survive. A second bullet entered the left side of
Gilbert's head, exited the right side of the skull, and lodged under the skin
or muscle. The third bullet entered
behind the left ear and lodged in the base of the skull. There was stippling around the gunshot wound
near the earlobe, which indicated that the muzzle of the gun was within two to
three feet of the wound when it was fired.
There were no bullet holes in any of the clothing that Gilbert was
wearing.
Gilbert's fetus was approximately
six months old and had no abnormalities or diseases. The fetus died due to the death of
Gilbert. The fetus "could"
have been viable.
The bullets that were recovered
from Gilbert's body were analyzed. One
of the recovered projectiles was made of lead and was consistent with being a
fragment of a bullet. The second
projectile was a fired bullet that had rifling with a right twist. This bullet was consistent with a .22 caliber
bullet. The third projectile was also
consistent with a .22 caliber bullet and had rifling with a right twist.
On June 3, 2008, Detective Alvarez
interviewed Betancourt, following his arrest in Las Vegas. Betancourt stated that he, Davis, and Gilbert
had been trying to buy crack cocaine on the night Gilbert was killed. The group went to several locations, and Gilbert
was trying to negotiate a deal for the crack cocaine. In an alley near a library, Gilbert got out
and walked away to meet the narcotics seller.
When she returned, Betancourt saw that the amount of crack cocaine was
shy of the amount they had purchased. He
told her so. She called the seller on
her cell phone.
The group then drove to a
Jack-in-the-Box and waited for the seller, but no one came. The group eventually drove back to the
apartment complex on Pacific, and parked in an alley. Betancourt got out of the car with a gun in
his hand. The driver ran away. After the shooting, Betancourt walked
upstairs, then drove to his cousin Yamara's house in Long Beach.
Betancourt
testified in his own behalf at trial. In
April 2008, he was 18 years old, an A student in high school, worked at
Food-4-Less, and had signed up for the Marines.
He did not have any convictions for misdemeanors or felonies. He had only known Riley for about three
months. Riley was a good friend of one
of Betancourt's cousins.
Riley had a
revolver that had brown grips.
Betancourt had been in Riley's apartment and had "mess[ed]
with" the gun on several occasions.
Betancourt
admitted that he took part in a robbery on April 22, 2008, with Riley, Albert
Fernandez, and Sean Richards. Riley had
a gun, but did not pull it out during the robbery. During the robbery, Betancourt reached into a
man's pocket and removed money while Riley held and punched the man.
Betancourt
had seen Gilbert a few times, but did not know her. He had no idea she was pregnant.
On April
23, 2008, Betancourt was in Riley's apartment on South Pacific. Betancourt's cousin Albert Fernandez was also
there. At some point, Gilbert knocked on
the door of the apartment. Riley went
outside to talk to her. She told him she
knew where to buy some drugs. Riley came
back into the apartment and asked Betancourt or Fernandez to accompany him and
Gilbert. Betancourt agreed to accompany
Riley, but was not himself interested in the drugs.
Betancourt
went downstairs with Riley and Gilbert.
Davis was downstairs. Everyone
got into Davis's car. Riley placed his
gun, a .22 caliber revolver with brown handles, in Betancourt's lap. Both men were in the back seat. Betancourt placed the gun inside the hoodie
he was wearing.
The group
drove to an alley. Nothing
happened. The group then drove to an
area near a library. Gilbert got out and
walked down the alley. Betancourt was
scared because they were in a bad area, but got out of the car to smoke a
cigarette.
As Gilbert
was walking back to the vehicle, Riley said that he thought Gilbert was
"messing with the baggie."
Gilbert appeared to be "kind of high" when she returned to the
vehicle because she was "real fidgety." She handed something to Riley, who said that
it "wasn't all of it." Gilbert
insisted she had given Riley everything. Riley took the gun from Betancourt's lap,
pointed it at Gilbert, and directed her to give up the rest of the drugs. Betancourt was scared.
Riley told
Gilbert to call the drug seller. She did
so. Gilbert appeared to be
"agitated" and was having a "heated discussion" with the
person on the phone. Riley then directed
Davis to drive to the Jack-in-the-Box because that is where the drug seller
told Gilbert to go. Davis did so.
Betancourt
said that he wanted to get his cousin and go to Long Beach. Riley refused, stating "No; no; no. We need to get the stuff, dude." Betancourt took the gun from Riley because
Riley was pointing it at Gilbert's head and was "agitated." Riley said that "he had to take care of
it because he needed to get his dope back." Betancourt understood the remark to mean that
Riley would try to hurt Gilbert.
No one
showed up at the Jack-in-the-Box. Riley
became even angrier and Betancourt even more afraid. Eventually, Riley told Davis to drive back to
the apartment complex. Davis did
so.
When the
group got back to the apartment, everyone got out of the vehicle except
Gilbert. Davis, Riley and Betancourt all
stood on the same side of the car.
Betancourt had the gun in his hand and was "holding it"
towards Gilbert's "general direction." Riley was behind Betancourt, who was about
three feet away from the open passenger door where Gilbert sat. Riley said, "Do it." Betancourt believed that Riley would
"rough . . . up" Gilbert or attempt to shoot her.
Betancourt,
who had the gun "slightly raised a little bit," pulled the
trigger. He was not trying to kill
Gilbert, was not looking in her direction, and thought he was shooting
"slightly above the car or just in that general direction." Betancourt fired the weapon to "circumvent
the situation," to "[s]top it from getting any further," and to
"appease" Riley. Betancourt
did not believe he had shot Gilbert, because she said loudly, "I'm okay. I'm just going to lay here." Gilbert also stated, "I'm just going to
play dead now."
Betancourt
tried to leave, but Riley stopped him and told him to "go and shoot
her" because Gilbert was still moving and was alive. When Betancourt refused, Riley
"snatched" the gun from him and fired into the car three times. Riley fired the weapon three times while
leaning towards the car near the driver's door.
Appellants
ran into apartment 202. Betancourt told
his cousin that "something bad had happened" and that they needed to
leave. Riley stated that he "popped
her." Appellants and Fernandez
drove to Long Beach and stayed with Betancourt's cousin, Yamara. There, Riley said that Gilbert had been
pregnant.
The next
day, Betancourt and his girlfriend went to Knott's Berry Farm. Two or three days after the shootings,
Betancourt went to Las Vegas, where he was arrested.
Betancourt
also offered the testimony of Detective Alvarez who was present when Davis was
interviewed. Alvarez was also present
with his partner, Panozzo, during the interview of Riley. Alvarez noticed there were discrepancies
between Davis's and Riley's version of events.
Riley
denied shooting Gilbert. Riley stated
that he was in a second car, along with his girlfriend Camille, a person named
David, and Fernandez, and that this car followed the car containing Betancourt,
to protect Betancourt. Riley also stated
that the driver of the Acura was not supposed to know he was being
followed. Alvarez had not received
information from any other source confirming that Fernandez was in a car with
Riley and that such a car was following another car. While at the library, Riley heard Gilbert and
Davis arguing. Riley approached their
vehicle and stated, "Somebody give us some money." Riley also stated that he, his girlfriend,
and Fernandez had arrived back at the apartment complex before Davis and
Gilbert. Riley heard arguing, approached
the vehicle, and stated, "Like what's up?" Riley went with Fernandez back into the
apartment and then heard gunshots.
However, Davis said there had been no argument before the initial shot
was fired.
Alvarez
falsely told Riley that his fingerprints had been found in the Acura. Riley admitted that he had touched the inside
of the Acura while asking Betancourt if he needed anything. Riley stated that this occurred before they
left the alley and while the car was not moving.
Although
the gun was never recovered in the case, Alvarez told Riley that they had found
the weapon and that Riley's fingerprints were on the gun. Riley admitted he had touched the weapon, but
claimed he never shot Gilbert. Riley
stated that they had not received the amount of narcotics that was supposed to
be purchased. Riley blamed Gilbert and
Davis.
Riley
presented no evidence in his behalf.
Officer
Christopher Panozzo testified in rebuttal that he had his firearm when he
interviewed Redonia Smith, who stated that the guns he saw looked like the one
in Panozzo's pocket. Panozzo showed his
weapon, a .38 caliber handgun, to the jury.
On the night of the murder, Panozzo also interviewed Davis. Davis told Panozzo that a male had shot the
victim with a gun and then he heard three additional shots.
Discussion
1. Legal sufficiency of the evidence – second
degree murder
Betancourt
contends that the jury convicted him as an aider and abettor to the murders and
there is legally insufficient evidence to support a conviction for the second
degree murder of baby girl Gilbert under any aiding and abetting theory. We do not agree that the jury convicted
Betancourt as an aider and abettor.
Betancourt's
argument that the jury found that he was an aider and abettor hinges on the
section 12022.53, subdivision (d) allegation.
During deliberations, the jury asked the court: "In regards to the murder charge where
it says, 'cause great bodily injury and death,' what do we answer if we agree
someone caused great bodily injury but did not cause death?" The court replied: "If you are referring to Penal Code
section 12022.53(d), the word should be 'or' and not 'and.' If you find either element, then, your
finding is true." Betancourt
contends that the jury's question shows that the jury believed his account of
events and convicted him as an aider and abettor.
Betancourt testified that he
thought he shot over the car and did not injure Gilbert, and that his belief
was reinforced because he saw her moving and heard her speak after the
shot. According to Betancourt, Riley
then took the gun and fired two shots at Gilbert. The coroner testified that one of the three
shots to Gilbert's head entered on the right side, was superficial and would
not have caused death, and that she could have moved and spoken after this
injury. The court also testified that
the other two shots entered the left side of her head and were fatal. Thus, in Betancourt's view, the totality of
the evidence shows that he fired the one non-fatal shot from the left and Riley
fired the two fatal shots from the right.
He contends that since he was convicted as an aider and abettor in
Gilbert's murder he was necessarily also convicted as an aider and abettor in
baby girl Gilbert's murder.
There is no way to know which
murder count(s) the jury's question related to or which defendant. The jury continued to deliberate for several
hours after asking this question, and asked other, unrelated questions.
the jury was referring to Betancourt's role in Gilbert's murder, there is no
way to know if the jury's agreement remained unchanged throughout the remainder
of the deliberations. There is nothing
in the verdict itself which shows that the jury believed that Betancourt caused
great bodily injury but not death in the murder of Gilbert. The verdict form reads "great bodily
injury and death," and the jury returned a true finding on the allegation
without making any annotations on the form.
The court read the finding as "great bodily injury and
death." The jury agreed that this
was its finding.
Another
flaw with Betancourt's argument is that it fails to consider the jury's section
12022.53 findings as a whole. The jury
found not true all the section
12022.53 allegations as to Riley for both murders. This includes allegations that Riley
personally used a handgun, and personally discharged a handgun. At the same time, the jury found true these
same allegations as to Betancourt for both murders, and also found true the
discharge caused great bodily injury and death for the Gilbert murder. It is not reasonable to understand the jury's
findings as a whole as showing that they believed that Riley fired the fatal
shots.
Betancourt
points out that the jury found not true the allegation that he personally
discharged a firearm causing great bodily injury or death in the second degree
murder of baby girl Gilbert. To the
extent that Betancourt contends that this finding is inconsistent with a
verdict that he was guilty as the actual killer and requires reversal, we do
not agree. There is no way to know the
reason for this inconsistency. It could
be the result of leniency, compromise or mistake. (See People
v. Abilez (2007) 41 Cal.4th 472, 513.)
For example, since no bullets hit the fetus, the jury may have
mistakenly believed that a not true finding on section 12022.53, subdivision
(d) allegation was required.
To the extent that Betancourt
contends that the evidence is legally insufficient to prove that he was guilty
of the second degree murder of baby girl Gilbert even as the actual killer, we
do not agree. There is no requirement
that a defendant be aware that a victim is pregnant in order to be convicted of
fetal murder. (People v. Taylor (2004) 32 Cal.4th 863, 867.) "When a defendant commits an act, the
natural consequences of which are dangerous to human life, with a conscious
disregard for life in general, he acts with implied malice towards those he
ends up killing." (
specifically know of the existence of each victim. (Ibid.) Here, the evidence showed that Gilbert was
shot in the head three times at close range.
The natural consequences of firing at a person at close range are
dangerous to human life and the act shows a conscious disregard for human
life. The death of Gilbert resulted in
the death of baby girl Gilbert. That is
sufficient to support the second degree murder conviction.
2. Multiple special circumstance allegation
Riley
contends that he was convicted of both murders as an aider and abettor and that
his conviction for implied malice fetal second degree murder does not contain a
finding that he acted with the intent to kill.
the multiple murder special circumstance was legally precluded, since that
special circumstance requires a finding that an aider and abettor have an
intent to kill in at least two murders.
We do not agree that the special circumstance was legally precluded.
Section
190.2, subdivision (a)(3) sets forth the following special circumstance: "The defendant, in this proceeding, has
been convicted of more than one offense of murder in the first or second
degree." This subdivision contains
no requirement of an intent to kill. Our
Supreme Court has made it clear that there is no intent to kill requirement for
the actual killer under subdivision (a)(3).
(People v. Dennis (1998) 17
Cal.4th 468, 516 [no intent for murders committed after June 5, 1990].)
The intent
requirement for an aider and abettor is set forth in section 190.2, subdivision
(c), which provides: "Every person,
not the actual killer, who, with the intent to kill, aids, abets, . . . or
assists any actor in the commission of murder in the first degree shall be
punished by death or imprisonment in the state prison for life without the
possibility of parole if one or more of the special circumstances enumerated in
subdivision (a) has been found to be true under Section 190.4." Thus, subdivision (c) requires only that the
aider and abettor have an intent to kill in one first degree murder. (See People
v. Dennis, supra, 17 Cal.4th at p. 517, fn. 10 ["intent-to-kill
requirement for aiders and abettors flow[s] from the statutory language"].)
The
prosecutor's theory of the case met the requirements of subdivision (c). The prosecutor argued that Riley acted with
an intent to kill in Gilbert's murder, and that murder was in the first degree. The jury convicted Riley of first degree
murder in that killing. Nothing in the
express language of subdivision (c) requires an intent to kill for a second
degree murder.
Riley
attempts to find an intent to kill requirement for two murders in case
law. His attempt fails.
Riley is
correct that the Supreme Court has "adopt[ed] the following reading of the
relevant statutory provisions: intent to
kill is not an element of the multiple-murder special circumstance; but when
the defendant is an aider and abetter rather than the actual killer, intent
must be proved." (
Cal.3d 1104, 1149-1150.) Riley overlooks
the fact that "[a]s Anderson
made clear, the intent-to-kill requirement for aiders and abettors flowed from
the statutory language. (
v. Dennis, supra, 17 Cal.4th at p. 517, fn. 10.) As we explain, ante, that language requires an intent to kill in only one first
degree murder.
Riley also
relies on dicta from two Court of Appeal cases, People v. Samaniego (2009) 172 Cal.App.4th 1148 and
Cal.App.3d 1041. Riley makes too much of
these cases. The Court in
the general instructions on accomplice liability, not the requirements of
section 190.2. subdivision (c).
name="_ftnref4" title="">[4] In Rodriguez,
the special circumstance allegation was the prior murder circumstance found in
section 190.2, subdivision (a)(2). At
that time, the intent requirement for aiders and abettors was set forth in
section 190.2, subdivision (b). The
Court pointed out that "subdivision (b) is by its terms inapplicable to
subdivision (a)(2)." (
Since
section 190.2 does not require the defendant to have an intent to kill in at
least two murder convictions, the multiple murder special circumstance was
properly based on one first degree murder committed with an intent to kill and
one implied malice murder.
3. Multiple murder special circumstance
instruction
Riley
contends that the trial court erred in instructing the jury on the mental state
required for an aider and abettor by section 190.2, and that this error
requires reversal. Betancourt makes this
same contention. We agree that the trial
court erred.
The court
instructed the jury pursuant to CALJIC No. 8.80.1 that it could find the
subdivision (a)(3) special circumstance allegation true if it found that an
aider and abettor acted with an intent to kill, "or with reckless indifference to human life and as a major
participant aided, abetted, . . . or assisted in the commission of the crime of
___ which resulted in the death of a human being." (Emphasis added.) This was incorrect.
The reckless indifference standard
applies only to the felony murder special circumstance set forth in section
190.2, subdivision (a)(17). (§ 190.2,
subd. (d); see People
(2012) 53 Cal.4th 306, 322.)
name="_ftnref5" title="">[5] There was no subdivision (a)(17) special
circumstance allegation in this case, and the court should have omitted the
"reckless indifference" language from CALJIC No. 8.80.1.
This error was harmless beyond a
reasonable doubt. (People v. Brents (2012) 53 Cal.4th 599, 612; People v. Jones (2003) 30 Cal.4th 1084, 1119.) Both appellants were convicted of first
degree murder, which requires an intent to kill.
Each appellant contends that he was
only an aider and abettor and that the other was the actual killer. Each contends that he may have been convicted
of first degree murder only because the other had an intent to kill, without himself
having such an intent. We do not agree.
"[W]hen the charged offense
and the intended offense – murder or attempted murder – are the same, i.e.,
when guilt does not depend on the natural and probable consequences
doctrine," then "the aider and abettor must know and share the
murderous intent of the actual perpetrator." (People
v. McCoy (2001) 25 Cal.4th 1111, 1118.)
The jury was not instructed on the natural and probable consequences
doctrine in this case.
The jury was instructed that a
person aids and abets a crime if he knows of the unlawful purpose of the
perpetrator, has the intent or purpose of committing or encouraging the
commission of the crime and aids or encourages the intended crime. The instructions further stated that an aider
and abettor's guilt is determined by the acts of the participant and that
person's "own mental state."
The instructions also told the jury that an aider and abettor might have
a more culpable or less culpable mental state than the actual perpetrator and
that the aider and abettor's guilt could therefore be greater or less than the
actual perpetrator's guilt. The
instructions also stated that a person is not an accomplice unless he knows of
the unlawful purpose of the perpetrator and has the intent or purpose of "committing,
encouraging or facilitating the commission of the crime."
Under the above-described
instructions, the verdicts convicting appellants of first degree murder showed
that the jury found appellants intended to kill Gilbert. Thus, the instructional error was
harmless. (See People v.
[failure to instruct on element of special-circumstance allegation is harmless
if jury "necessarily found an intent to kill under other properly given
jury instructions"].)
4.
Inherently dangerous felony
Riley contends that the trial
court's instruction defining murder erroneously included references to an
inherently dangerous felony and that this error allowed the jury to convict him
improperly of murder under a felony murder theory without finding malice. Betancourt contends that the instruction
created an impermissible mandatory presumption that automatically made him
liable for the second degree murder of baby girl Gilbert.
We agree that the instruction is
incorrect as given. CALJIC No. 8.10, as
given in this case, told the jury that "Every person who unlawfully kills
a human being or fetus with malice aforethought or a felony inherently
dangerous to human life is guilty of the crime of murder in violation of Penal
Code section 187." Under the typed
words "to human life" the phrase "assault with a firearm"
is handwritten in. The instruction also
states: "The killing was done with
malice aforethought or ___ a felony inherently dangerous to human life namely
assault with a firearm ___ is a felony inherently dangerous to human
life."
As the trial court acknowledged in
discussions with counsel "this isn't a felony murder case." The only identified felony, assault with a
firearm, could not support such a theory.
(See People
(2009) 45 Cal.4th 1172, 1200 [assault with a firearm will generally
"merge" with the crime of a murder when the victim is killed by a
gunshot wound]; see also People
(1969) 70 Cal.2d 522, 539 [setting forth merger doctrine for felony murder].) Thus, the references to a felony inherently
dangerous to human life should have been deleted from the instruction.
In reviewing an erroneous
instruction, we determine whether there is a reasonable likelihood that the
jury applied the instruction in a manner that violates the Constitution. (People
v. Castaneda (2011) 51 Cal.4th 1292, 1320.) We consider all the instructions given to the
jury, and do not view the erroneous instruction in isolation. (Id.
at p. 1321.)
a.
First degree murder
The erroneous instruction was a
general one defining murder. The jury
also received a specific instruction defining first degree murder which
explained that first degree murder required express malice, along with an
instruction defining malice. There is no
reference to an inherently dangerous felony in those instructions. The jury was instructed to consider the
instructions as a whole, and to "not single out any particular sentence of
any individual point or instruction."
They were also told that all instructions were not necessarily
applicable.
The trial court also made the
following statement to the jury after Betancourt's closing argument to clarify
the theories of murder: "In this
case there are three degrees of murder or three theories of murder that are
being presented to you. [¶] One is first degree murder where you have an intent
to kill and there is premeditation and deliberation. [¶] There are two types of
second-degree or two degrees of second degree murder. One where you have [an] intent to kill with
no premeditation and deliberation. [¶] And the second that we are calling
implied malice murder where an act is done without intent to kill and the
natural consequences of which are dangerous to human life. [¶] Depending upon
what you find to be the facts, those three different types may apply to count 1
with respect to either defendant. But
only the second-degree implied malice applies to count 2."
In light of the instructions as a
whole and the trial court's clarifying statement, it is not reasonably likely
that the jury understood the isolated reference in CALJIC No. 8.10 referring to
an inherently dangerous felony as giving them permission to convict appellants
of the first degree murder of Gilbert under the felony murder doctrine without
finding malice.
To the extent that Riley contends
that the jury might have somehow read this instruction differently because it
was considering his guilt as an aider and abettor, we do not agree. As we discuss, ante, numerous instructions made it clear that an aider and
abettor's guilt is determined by his own mental state. The instruction on first degree murder made
it clear that conviction of that offense required a mental state of intent to
kill, premeditation and deliberation.
b.
Second degree murder
A person is guilty of second degree
murder if he has an intent to kill or committed an act the natural consequences
of which are dangerous to human life, and did so with knowledge of or conscious
disregard for human life. Betancourt
contends that the inherently dangerous felony reference in CALJIC No. 8.10
created an impermissible presumption that assault with a firearm is an
intentional act, the natural consequences of which are dangerous to human
life. He concludes that this presumption
removed an element of the crime from the jury's consideration, and permitted
the jury to convict him of the second degree murder of baby girl Gilbert
without finding implied malice.
We will assume for the sake of
argument that such a presumption was created.
We find the error harmless beyond a reasonable doubt. It did not contribute to the verdicts. (See People
v. Huggins (2006) 38 Cal.4th 175, 211-212 [instructional errors, including
instructions with erroneous presumptions, are subject to harmless error
analysis].)
Here, there was some testimonial
evidence from Betancourt that he tried to shoot above the car, was not trying
to kill Gilbert and did not believe that he had shot her. Riley told police that he did not shoot
Gilbert and was not present when she was shot.
These statements were contradicted by the forensic evidence, which
showed that Gilbert was shot three times in the head, there was no damage to
nearby walls and no bullet holes in the car.
Firing a gun at someone's head
multiple times at close range is unquestionably dangerous to human life. There is nothing to suggest that appellants
were unaware of Gilbert's presence, or believed that the gun was unloaded or
non-functional. Thus, the jury must have
found that appellants acted with implied malice. (See People
v. Hach (2009) 176 Cal.App.4th 1450, 1457 [because evidence showed that
defendant was 10 feet away from car when he shot directly into it and knew
there were two people in the car, the jury must have found that defendant
committed an act that was dangerous to life, knew of the danger and acted with
conscious disregard for life and thus acted with implied malice];
1148, 1160-1161 [where jury is erroneously instructed with conclusive
presumption, but no reasonable juror could find predicate facts without also
finding presumed facts, the instruction is superfluous and does not require
reversal].)
5.
Natural and probable consequences doctrine
Betancourt contends that the trial
court erred in failing to instruct the jury on the natural and probable
consequences doctrine. We see no
error.
A trial court has a sua sponte duty
to instruct on this doctrine "only when the prosecution has elected to
consequences' theory of accomplice liability and the trial court has determined
that the evidence will support instructions on that theory." (People
v. Prettyman (1996) 14 Cal.4th 248, 269.)
Although the prosecution did request such an instruction, the trial
court correctly found that the instruction was not appropriate under the theory
articulated by the prosecutor for the instruction. The prosecutor did not thereafter refer to
this doctrine. Further, there was no
evidence that one of the appellants intended to aid and abet the other in
committing a target offense, but the other instead committed murder. Thus, the trial court had no obligation to
instruct on this theory.
Betancourt is mistaken in
contending that People v. Taylor
(2004) 32 Cal.4th 863 required an instruction on the natural and probable
consequence doctrine. That case is
premised on implied malice in the murder of a fetus. (Id.
at pp. 865, 868-869.) There does not
appear to have been an accomplice involved.
6.
Doubling LWOP
Riley contends that the trial court
erred in doubling his life without the possibility of parole term pursuant to
the Three Strikes law.
As Riley acknowledges, there is a
split of authority on this issue. Our
colleagues in Division Two of this District Court of Appeal have held that such
a term may be doubled. (
1429, 1433-1434.) The Third District
Court of Appeal has held that terms of life without the possibility of parole
may not be doubled. (
480, 503-504.)
We agree with our colleagues in
Division Two that the term may be doubled.
There is no express provision in the Three Strikes law for a term of
life without the possibility of parole.
(People v. Hardy, supra, 73
Cal.App.4th at p. 1433.) Therefore, we
look to the purpose of the Three Strikes law.
That purpose is to "ensure longer prison sentences and greater
punishment for those who commit a felony and have been previously convicted of
serious and/or violent felony offenses."
(Ibid.) Thus, the term should be doubled.
"A doubled sentence of life
without possibility of parole is consistent with Penal Code section 669, which
provides in pertinent part: 'Life
sentences, whether with or without the possibility of parole, may be imposed to
run consecutively with one another.'" (People
v. Hardy, supra, 73 Cal.App.4th at p. 1433.) We agree with our colleagues that doubling an
LWOP term is the equivalent of sentencing a defendant to two consecutive LWOP
terms. (Ibid.)
7. Count 2 LWOP sentence
Appellants contend that the trial
court erred in sentencing them to a term of life without the possibility of
parole for the count 2 second degree murder conviction. Respondent agrees. We agree as well.
Section 190.2, subdivision (a)(3)
states that a sentence of life without the possibility of parole (or death) can
be imposed for first degree murder if the defendant has been convicted of more
than one murder in the proceeding. Under
section 190, subdivision (a), the sentence for second degree murder is 15 years
to life. Thus, the trial court erred in
sentencing appellants to life without the possibility of parole for the second
degree murder conviction. (
Cal.4th 1038, 1047-1048.) The sentence
must be corrected to 15 years to life.
For appellant Riley, this sentence must be doubled to 30 years to life
pursuant to the Three Strikes law.
8.
Section 667, subdivision (a) enhancement
Riley contends that the trial court
erred in imposing a section 667, subdivision (a) enhancement on count 2 and
then ordering that enhancement to run consecutively to count 1. Respondent questions whether the trial court
made such an order, but agrees that such an order would be unauthorized. We agree.
The trial court ordered count 2 to
run concurrently to count 1. A section
667, subdivision (a) enhancement imposed on an indeterminate sentence must run
concurrently with that underlying term.
(People v. Williams (2004) 34
Cal.4th 397, 403-405.)
We agree with Riley that the trial
court's statements at sentencing can be reasonably understood as ordering the
section 667, subdivision (a) enhancement to run consecutively to other
punishment. The court stated: "For a total of four years plus five years
on the 667(a)(1) prior both on count 2 and count 1 for a total, according to my
calculations, of 20 years, which is five years for the 667(a)(1) twice, which
is ten years plus four years on the 211's.
That is 9 years plus 1 year on the 12022(a)(1). [¶] For life without the
possibility of parole plus 20 years."
This error does not appear in the
minute order for Riley's sentencing hearing or in the abstract of
judgment. In the interest of clarity, we
order stricken that portion of the trial court's oral pronouncement of judgment
which orders the section 667, subdivision (a) enhancement to run consecutively
to any other punishment. That
enhancement is to run concurrently.
9.
Fines
At sentencing, the trial court
imposed a $10,000 restitution fine and a security surcharge in the amount of
$120. The trial court did not impose a
parole revocation fine. The minute order
and abstract of judgment show a $10,000 parole revocation fine and a security
fee in the amount of $160. Appellants
contend that the minute order and abstract of judgment must be corrected to
reflect the trial court's oral pronouncement.
They contend that the prosecutor's failure to object at the sentencing
hearing forfeited any claim of error. We
do not agree.
The minute order and abstract of
judgment are correct. The oral
pronouncement of judgment was not
correct.
Since appellants received a
determinate term for their two robbery convictions, a parole revocation fine
was required. (People v.
1075.) This is true even though
appellants also received sentences of life without the possibility of
parole. (Ibid.) The amount of the
fine must be equal to the restitution fine assessed pursuant to section
1202.4. (§ 1202.45.) Here, that amount is $10,000. The trial court erred in failing to impose
this fine at the sentencing hearing.
A security fee in the amount of $40
per conviction is required by section 1465.8.
Since appellants suffered four convictions in this case, the correct
amount of the fine is $160. The trial
court erred in imposing a lower amount at the sentencing hearing.
The claims were not forfeited. An invalid fine pursuant to section 1465.8
and the failure to impose a required fine under section 1202.45 both fall
"within the narrow class of sentencing errors exempt from the waiver
rule." (People v. Smith (2001) 24 Cal.4th 849, 853; People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) The abstracts of judgment are correct and
will remain unchanged.
10.
Count 2 sentence
Appellants contend that the court
ordered the count 2 sentence to be served concurrently with the count 1
sentence and the abstract of judgment should be corrected to reflect that
pronouncement. Respondent agrees. We agree as well.
When there is a discrepancy between
the oral pronouncement of judgment and the abstract of judgment, the oral
pronouncement controls. (
859, 864.) Thus, the abstract must be
corrected to show that the sentence on count 2 is concurrent to the sentence on
count 1.
Disposition
The sentence of life without the
possibility of parole for count 2 is stricken and the correct sentence of 15
years to life in prison is imposed for appellant Betancourt, and 15 years to
life doubled to 30 years to life for appellant Riley. Sentence on count 2 is to be served
concurrently to sentence on count 1. The
clerk of the superior court is instructed to prepare a corrected abstract of
judgment reflecting these changes and to deliver a copy of the corrected
abstract to the Department of Corrections and Rehabilitation.
The trial court's statement at the
sentencing hearing that the section 667, subdivision (a) enhancement is to run
consecutively to other punishment is stricken.
The court's statement that the amount of the security fee is $120 also
ordered stricken. No change to the
abstract of judgment is required. The
trial court failed to impose a $10,000 parole revocation fine at the sentencing
hearing. That fine is ordered
imposed. No change to the abstract of
judgment is required. The judgment of
conviction is affirmed in all other respects.
ARMSTRONG,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
to the Penal Code unless otherwise indicated.
receiving the answer to this question, then asked an additional, unrelated
question, then adjourned for the day.
The jury asked an additional question the next morning, deliberated
further and reached their verdicts at 11:55 a.m.
