P. v. Hayes
Filed 5/9/13 P. v. Hayes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JUSTIN
TYME HAYES et al.,
Defendants and Appellants.
E053716
(Super.Ct.No. SWF027093)
O P I N I O N
APPEAL from the Superior
Court of
County. F. Paul
Dickerson III, Judge. Affirmed with
directions.
Michael
B. McPartland, under appointment by the Court of Appeal, for Defendant and
Appellant Justin Tyme Hayes.
Patricia
L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant Derek Shane O’Brien.
Diane
E. Berley, under appointment by the Court of Appeal, for Defendant and
Appellant Mark Anthony Wisler.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendants and appellants, Justin Tyme Hayes, Derek Shane
O’Brien, and Mark Anthony Wisler, are members or associates of the Coors Skins
(Coors), a White supremacist gang. On an
evening in November 2008, they, among others, beat a Hispanic man into a
coma. Separate juries convicted them of
attempted murder, active participation in a criminal street gang, and assault
by means of force likely to cause great bodily injury. Each jury also found true allegations that
defendants personally inflicted great bodily injury and that the crimes were
committed for the benefit of, at the direction of, or in association with a
the attempted murder was premeditated and deliberate; Hayes’s jury and
O’Brien’s jury found the same allegation not true. Hayes and O’Brien were each sentenced to
prison for 22 years 8 months. Wisler was
sentenced to a prison term of 21 years to life.
Each defendant contends (or joins in the contentions of
his codefendants) that the court erred by:
(1) denying a motion to sever the gang participation count and bifurcate
the trial of the gang enhancement allegations; (2) allowing a gang expert to
testify as to allegedly inflammatory gang-related evidence; (3) instructing the
jury on aiding and abetting and the natural and probable consequences doctrine;
and (4) failing to stay the sentence on the gang participation conviction under
Penal Code section 654.
name="_ftnref1" title="">[1] In addition, Wisler contends the evidence was
insufficient to support his jury’s finding of premeditation and
deliberation. We agree with defendants
(and the Attorney General) that the court should have stayed the sentence on
the conviction for active gang participation.
We reject defendants’ other arguments and affirm the convictions.
II. FACTUAL BACKGROUND
A. Prosecution
Case
1. The Attack
on Sergio Cortez: Evidence Heard by All
Juries
In the evening of November
14, 2008,
Scott Siewert drove the three defendants (Hayes, O’Brien, and Wisler) and two
others, Darrin Thibault and Derek Richardson, to the home of Tyler Brooks. They planned to drink beer and whiskey and
smoke marijuana.
Brooks lived in a mobilehome park. Sergio Cortez, a Hispanic man, went to the
mobilehome park that night to visit with his family. When he was near Brooks’s home, someone said he
tried to break into Siewert’s car. Richardson became angry and yelled
and cursed at Cortez. The two began
fighting. Siewert joined in the fight
against Cortez. Cortez fell to the ground. Richardson and Siewert continued to kick and
hit him.
Cortez got up and ran away. Defendants and others chased after him. Some of the attackers were shouting, “White
Power†and “Coors Up.†At some point,
Siewert ran back to get his car.
The group caught up to Cortez, knocked him down, and
began punching and kicking his body and head.
One witness to the beating recalled “the hollow noise of the head being
kicked, the ribs being broken.†Cortez
covered his head and face with his hands to protect himself.
Hayes punched Cortez and stomped on his head by jumping
up and landing on Cortez’s head with both feet; O’Brien kicked and punched
Cortez, and stomped on his head with one foot.
Wisler kicked and punched Cortez.
Even after Cortez lost consciousness and his hands fell away from his
face, defendants continued to kick him.
Cortez made sounds described as “gargling†or “[h]eavy snoring.â€
A resident of the mobilehome park called 911 and yelled
out that she was calling the police.
The attackers ran to Siewert’s car. O’Brien, Thibault, Wisler, and Richardson got
inside the car; Siewert was driving.
Someone said, “cover the plates.â€
Hayes jumped onto the back of the car and used his body to cover the
license plate. Hayes rode on the back of
the car until they got outside the mobilehome park, then got inside the car.
They drove to the house of some friends, where they
talked about “how cool†the attack was.
Someone took a picture showing Wisler making the straight-armed Heil
Hitler salute with a bloodied hand.
Police arrived at the mobilehome park about 11:25
p.m. Cortez was swollen, bleeding, and
unconscious. He had difficulty breathing
and was making a gurgling noise.
Cortez was transported to a hospital. He was in a coma; he had no eye movement,
could not speak, and had only “very primitive motor reflexes involving the arms.†He suffered injuries from blunt force trauma,
abrasions to his extremities, and bruising to his head. Doctors inserted a breathing tube because
Cortez could not breathe on his own due to neurological damage. A treating physician testified that without
the breathing tube, Cortez would probably have died.
2. O’Brien’s
Statements to Police
On January 1, 2009, O’Brien was interviewed by police
detectives. A recording of his interview
was played to the jury deciding his case only.
O’Brien told the detectives he was inside Brooks’s mobilehome cooking a
burrito when he noticed there was a fight going on. He saw his friends fighting and went to break
it up. He did not hear anyone yell
anything, and he did not hit or kick anyone.
He denied being a member of the Coors gang.
3. Wisler’s
Statements to Police
Detectives interviewed Wisler on January 15, 2009. A recording of the interview was played to
the jury deciding his case only. In the
interview, Wisler told the detective that he, Hayes, O’Brien, Siewert, and
Richardson were at Brooks’s house drinking beer and hanging out. O’Brien, Richardson, and Siewert were outside
the trailer. Wisler and Hayes were
inside when they heard a “ruckus.â€
Wisler went outside and saw a “Mexican dude†running. He and the others chased after him.
As he ran after Cortez, he and Hayes yelled, “White
Power.†Wisler said he yelled “White
Power†“[t]o try to seem cool in front of ‘em.â€
He believed that Hayes yelled the phrase to scare or intimidate the
“Mexican guy.â€
The group caught up to Cortez and started punching him
and kicking him in the head. Wisler
admitted to punching Cortez twice. Hayes
and Richardson kicked him and stomped on his face. Hayes yelled “Coors Up†as he kicked
Cortez. According to Wisler, Hayes said
this to let people know “[w]here [they are] from.†After they beat Cortez, they ran to Siewert’s
car and drove away.
4. The
Prosecution’s Gang Evidence
(a)
Thibault, one of the attackers, testified for the prosecution.
White supremacist gang. He explained
that “Coors†is an acronym for “Comrades of Our Racial Struggle.†He had been in that gang for five or six
years. He left Coors in December 2008,
one month after the attack on Cortez, when he agreed to cooperate with the
police.
Prior to joining Coors, Thibault was a member of the
Hemet Valley Skins, another White supremacist gang. Members of Hemet Valley Skins “associate with
Coors,†and most of them become involved in the Coors gang. The two gangs back each other up and are
described as having a “pretty close†relationship and a “pretty tight
connection†between them.
Thibault became a member of Coors when he was in
prison. In order to become a member, he
was required to “prove†himself by “putting in work†for the gang. This meant he had to commit acts of violence
against others for the gang. Thibault
fulfilled this requirement when he participated in a prison race riot. To show he was a member of the gang, he got a
Coors beer logo tattooed on his lower back.
Thibault described Coors as a violent organization
involved in criminal activity. The
gang’s main criminal activities included assaults, attempted murders, and
vehicle thefts.
A Coors gang member’s shoes have white laces until the
member “shed[s] blood†for the gang; then he receives red laces. You can earn the red laces by “stomping.â€
Thibault testified that Hayes was a Coors member with a
Coors tattoo on his throat. He goes by
the moniker “Panicâ€â€”an acronym for “‘[p]utting any nigger in check.’†In a photograph of Hayes taken in June 2008
(five months before the attack on Cortez), Hayes is wearing white
shoelaces. Four days after the attack,
Hayes was photographed wearing red shoelaces.
Siewert and O’Brien were members of Hemet Valley Skins
who associated with Coors. Wisler was
not a member of either gang, but did associate with Coors. Wisler was aware that Thibault, Richardson,
Siewert, Hayes, and O’Brien were “from Coors.â€
Thibault identified defendants in a photograph in which each is doing
the Heil Hitler salute.
Thibault explained that in the White supremacist gang
culture, it was understood that if one gang member got involved in a fight, the
others were expected to jump in and fight as well. Thus, once Richardson and Siewert began
attacking Cortez, it was understood that the rest of them would join in.
He further testified that the point of yelling “White
Power†and “Coors Up†during an attack is to let the victim and witnesses know
who they are and to give a warning to others “not to fuck with [them].†He explained that if people hear the name
Coors, “they would be scared†and intimidated.
The notoriety increases the gang’s status.
Thibault believed that when he was attacking Cortez, he
was “putting in work†for Coors.
However, he also testified that the attack had nothing to do with the
Coors gang.
(b)
Hemet Police Department Corporal Takashi Nishida
testified as a gang expert. Corporal Nishida
testified that the Coors gang is a White supremacist gang that began about 15
or 20 years ago. Many members of the
Hemet Valley Skins gang became Coors gang members.
The Coors gang’s primary activities include murders,
attempted murders, assaults with deadly weapons, vehicle thefts, drug sales,
firearm violations, and burglaries.
Corporal Nishida identified numerous predicate offenses committed by
Coors gang members.
Corporal Nishida explained that gang members use
intimidation to instill fear of them in the community. Such fear is viewed by gang members as
respect for the gang. He testified that
saying the gang’s name while committing a crime is a way of informing others
that the gang is committing the crime, and saying “[W]hite power†during the
crime is a way of telling people that the gang members are part of a White
supremacist gang.
“Putting in work†for a White supremacist gang refers to
committing crimes for the benefit of the gang, which increases notoriety for
the gang and the member who commits the crime.
The more heinous the crime, the greater the notoriety.
In Corporal Nishida’s opinion, Wisler, O’Brien, and Hayes
were active participants in the Coors gang on November 14, 2008. In response to hypothetical questions that
mirrored the facts in this case, Corporal Nishida testified that the
hypothetical assault would have been in association with the Coors gang and for
its benefit. Corporal Nishida explained
that the assault benefits the gang by instilling fear in the community, the victim,
and witnesses. Through such fear the
gang gains respect and notoriety.
B. Defense
Case
Siewert testified before all juries that on the night of
the incident, he, Hayes, O’Brien, Wisler, Richardson, and Thibault were
drinking alcoholic beverages for a few hours at his house. He then drove them to Brooks’s house. He was outside the trailer when he saw
Richardson arguing with Cortez and heard someone say something about breaking
into a car. Richardson and Cortez
started fighting. According to Siewert,
Cortez was getting the better of Richardson.
Siewert then rushed over and knocked Cortez down. Richardson told Siewert that Cortez was
breaking into his car. Cortez got up and
he and Siewert started fighting. Siewert
knocked Cortez down again. When Cortez
got up, Siewert told Cortez to “get the fuck out of here.†Cortez then ran away.
Siewert then saw other people running after Cortez. He was not sure who they were because it was
dark, but thought they probably came from the party at Brooks’s house. Siewert followed them and, from some distance
away, saw a group of people kicking and punching someone. He did not get any closer and did not get
involved. Although he did not see “who
did what,†he knew his “friends were involved in [the] attack.†Siewert ran back to his car and started to
drive away. As he headed toward the
mobilehome park exit, he came upon the friends he had driven to Brooks’s home. They (except for Hayes) jumped inside the
car; Hayes jumped on the back of the car.
Siewert said he did not plan to fight Cortez or encourage
others to fight; he got involved in the first fight only because O’Brien was
losing the fight to Cortez and he heard that Cortez was breaking into his
car. He admitted being a “Hemet skin,†a
“proud [W]hite guy,†and an admirer of Adolph Hitler, but denied being a member
of the Coors gang.
Hayes testified before all juries. He admitted being a Coors member at the time
of the incident. He and others had been
drinking heavily by the time Siewert drove them to Brooks’s house. Shortly after arriving at Brooks’s house,
Hayes heard a commotion outside. He
heard someone yell, “he was breaking in [sic]
the car, there’s a fight.†Hayes ran out
of the mobilehome and saw three or four people running away from the
trailer. He ran after them. As he caught up to the others, he saw Cortez
get pushed to the ground. Hayes then
joined in the fight by punching and kicking Cortez “[a]ll over,†including his
head. He punched Cortez approximately
five times and kicked him approximately five times. Wisler was next to him and participating in
the assault. Cortez initially used his
hands to block the punches and kicks, but eventually stopped and “dropped his
guard.†The attackers then turned around
and started running. They found Siewert
as he was heading for the park exit. He
jumped onto the back of Siewert’s car.
He covered the license plate because he “didn’t want to get in
trouble.†Eventually, he got inside the
car.
Hayes said that he was not thinking about the Coors gang
during the assault and had no intent to promote the gang. He was thinking only that “this guy just
broke into a car and I wanted to kick his ass.â€
He intended to “beat him up,†but not kill him.
Hayes introduced evidence that DNA in blood found on his
shoes did not match Cortez’s DNA.
III. ANALYSIS
A. Denial
of Motion to Sever Gang Participation Count and Bifurcate Gang Enhancement
Allegation
Prior to trial, Siewert moved to sever the trial of the
gang participation count from the attempted murder and assault counts and to
bifurcate the trial of the gang enhancement allegation.
motion. After hearing argument, the
court denied the motion, explaining that “the gang evidence and the attack on
the victim are intertwined with one another such that it is all part of what
played out that evening.†“In the
opinion of the Court, to bifurcate the gang allegations and the substantive
gang charge, rather than to have them heard simultaneously with the attempted
murder and assault charges, would be to provide an incomplete picture of what
occurred that evening. [¶] The gang allegation and gang charge are, if
believed, potentially the source of the attack and the basis for the attack
being so vicious.â€
Defendants contend the denial of the
motion to sever and bifurcate was error.
We disagree.
Section 954 permits the joinder of
“‘two or more different offenses of the same class of crimes or
offenses.’†The law favors joinder of
counts because it promotes efficiency. (
1200.) There is no dispute in this case
that the gang participation count and the gang enhancement were properly joined
with the attempted murder charge under section 954.
Even when joinder is proper, the
trial court may, “in the interests of justice and for good cause shown,â€
exercise its discretion to order that different offenses or counts be tried
separately. (§ 954; see
798.) “‘“The burden is on the party seeking
severance to clearly establish that there is a substantial danger of prejudice
requiring that the charges be separately tried.†[Citation.]’â€
(People v. Bradford (1997) 15
Cal.4th 1229, 1315.)
If the court denies a motion to sever, the ruling is reviewed
on appeal for abuse of discretion. (
439.) In determining whether a trial
court abused its discretion, we consider the record before the trial court when
it made its ruling. (
p. 798.) “We consider first whether the
evidence of the two sets of offenses would have been cross-admissible if the
offenses had been separately tried.
[Citation.] If the evidence would
have been cross-admissible, then joinder of the charges was not
prejudicial.†(Ibid.) “[C]omplete (or
so-called two-way) cross-admissibility is not required. In other words, it may be sufficient, for
example, if evidence underlying charge ‘B’ is admissible in the trial of charge
‘A’—even though evidence underlying charge ‘A’ may not be similarly admissible
in the trial of charge ‘B.’
[Citations.]†(
Cal.4th 1205, 1221.)
If the evidence is not cross-admissible, “we next inquire
‘whether the benefits of joinder were sufficiently substantial to outweigh the
possible “spill-over†effect of the “other-crimes†evidence on the jury in its
consideration of the evidence of [the] defendant’s guilt of each set of
offenses.’ [Citations.] We consider ‘[1] whether some of the charges
are likely to unusually inflame the jury against the defendant; [2] whether a
weak case has been joined with a strong case or another weak case so that the
total evidence may alter the outcome of some or all of the charges; and [3]
whether one of the charges is a capital offense, or the joinder of the charges
converts the matter into a capital case.’
[Citation.] ‘We then balance the
potential for prejudice to the defendant from a joint trial against the
countervailing benefits to the state.’
[Citation.]†(
pp. 798-799.)
Finally, even when a trial court’s denial of severance
was not an abuse of discretion at the time it was made, we must consider the
evidence actually introduced at trial to determine whether the joinder resulted
in a gross unfairness amounting to a denial of fair trial or due process. (People
v. Thomas, supra, 53 Cal.4th at pp. 800-801; People v. Myles, supra, 53 Cal.4th at p. 1202.)
In addition to severing the trial of different counts
under section 954, a court has discretion under section 1044
allegation. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Bifurcation of the gang enhancement may be
warranted if evidence of the predicate offenses offered to establish a pattern
of criminal gang activity is “unduly prejudicial†or other gang evidence is “so
extraordinarily prejudicial, and of so little relevance to guilt, that it
threatens to sway the jury to convict regardless of the defendant’s actual guilt.†(Ibid.)
To convict defendants of the gang participation count,
the prosecution needed to prove, among other elements, that each defendant
“willfully promote[d], further[ed], or assist[ed] in any felonious criminal
conduct by members of [the criminal street] gang†in which he actively
participates. (§ 186.22, subd.
(a).) In this case, the People sought to
establish this element by relying on the attempted murder and assault crimes
charged in this case. Thus, if the gang
participation count was severed from the other counts, the evidence regarding
the attack on Cortez would need to be presented at both trials. Clearly, this would defeat the goal of
promoting efficiency through joinder.
Moreover, as the trial court noted, evidence of
defendants’ gang participation was relevant to show motive and intent as to the
attempted murder and assault counts.
(See People v. Williams (1997)
16 Cal.4th 153, 193 [gang evidence is admissible if relevant to prove motive or
intent].) The viciousness of the attack
and the group participation in the assault are more understandable in light of
evidence of the gang’s racist ideology, its culture of jumping into fights
involving gang members, and that one of the gang’s primary activities is
murder. In the absence of such
gang-related evidence, the attack might appear as an assault by drunks at a
party who thought Cortez was trying to break into a car. With the evidence of the culture and criminal
activities of the Coors gang, however, the same incident can be viewed as an
attack on a Hispanic man by a group of White supremacists seeking to put in
work for their gang and enhance the gang’s reputation of violence. A motive for the viciousness of the attack
and an intent to kill is more easily inferred in the latter situation. The gang evidence was thus relevant to prove
such intent. Moreover, evidence
regarding the nature of the Coors gang was relevant to explain the shouts of
“Coors Up†and “[W]hite power†yelled during the chase of Cortez.
The gang evidence was also relevant to explain why some
witnesses of the assault on Cortez had difficulty recalling the incident or
contradicted prior statements to police.
For example, one witness described the assault in some detail to a police
investigator and identified Hayes and Wisler as two people who participated in
the attack. After describing the events
of that night, she told the investigator she did not want to testify in court
because she was afraid of the gang and did not “want to be killed.†At trial, that witness testified she could
not recall the incident at all. Her fear
of testifying and purported inability to remember the incident at trial could
be explained by the gang expert’s testimony that the gang will use fear to intimidate
witnesses into recanting or refusing to testify. Such evidence is thus relevant on the issue
of such witnesses’ credibility. (See
944, 957.)
Because of the cross-admissibility of evidence of the
attack in a trial of the gang participation count and of the
cross-admissibility of gang evidence in a trial of the attempted murder and
assault counts, the court did not abuse its discretion in denying the motion
for severance.
Furthermore, reviewing the record in light of the
evidence actually introduced at trial, the joinder did not deprive defendants
of their constitutional rights to a fair trial or due process. To the extent the gang evidence was
inflammatory, there is no reason to believe the juries did not follow the
court’s instructions that each count charged is a separate crime and they “must
consider each count separately.†Indeed,
we presume they did. (See
139.) The admission of such evidence did
not, we conclude, result in gross unfairness amounting to a denial of a fair
trial or due process.
Having determined that the court did not err in refusing
to sever the gang participation count from the other counts, we can easily
conclude there was no abuse of discretion in denying the
enhancement allegation. As noted above,
bifurcation may be appropriate if the evidence needed to prove the enhancement
allegation would be “unduly†or “extraordinarily prejudicial†and of “little
relevance†to guilt. (
at p. 1049.) If the gang participation
count had been severed from the other counts, it would make sense to also
bifurcate the trial of the gang allegation from the trial of the attempted
murder and assault counts. Here,
however, the court denied the motion to sever the trial of the substantive
counts and, as explained above, that ruling was not an abuse of discretion. Therefore, the gang evidence would be
presented in the trial of the substantive crimes. Because gang evidence that was admissible to
establish the enhancement allegation would have already come in to prove the
substantive gang participation count, there would be no reason to bifurcate the
gang enhancement allegation. Therefore,
because the court did not err in denying the motion to sever the substantive
counts, there was no abuse of discretion in also refusing to bifurcate the
trial of the gang enhancement.
B. Alleged
Inflammatory Nature of Corporal Nishida’s Testimony
Wisler contends that Corporal Nishida’s expert testimony
regarding the Coors gang was so inflammatory that it deprived him of due
process and his right to a fair trial.
First, he points to Corporal Nishida’s testimony that the primary
activities of the Coors gang included murder, attempted murder, assault with a
deadly weapon, vehicle theft, drug sales, firearm violations, and
burglaries. Next, Wisler refers to
Corporal Nishida’s testimony in which the gang expert referred to the fact that
Wisler had a “Nazi Pirate†tattoo and a tattoo depicting an iron cross, and
that he possessed a Coors beer glass and a book about Nazi Germany. Corporal Nishida relied on these facts and
Wisler’s association with White supremacist gang members in opining that Wisler
was an active participant in the Coors gang on the night Cortez was
beaten. Finally, Wisler points to
Corporal Nishida’s testimony about how gang members put in work for the gang by
committing crimes. He concludes by
asserting that “[n]one of this evidence was helpful as to the determination of
guilt.â€
We review rulings on the admissibility of evidence,
including gang evidence, under the abuse of discretion standard. (People
v. Albarran (2007) 149 Cal.App.4th 214, 224-225.) The defendant has the burden on appeal of
establishing an abuse of discretion. (
burden.
The evidence regarding the Coors gang’s criminal
activities is relevant to the active gang participation count and the gang
enhancement. Under section 186.22,
subdivision (a) (the substantive gang participation crime), the prosecution
must prove that the defendant is a “person who actively participates in any
criminal street gang . . . .â€
Under section 186.22, subdivision (b) (the gang enhancement), the
prosecution must establish that the underlying felony was “committed for the
benefit of, at the direction of, or in association with any criminal street
gang . . . .†A criminal
street gang is defined, in part, as an “ongoing organization, association, or
group of three or more persons . . . having as one of its primary
activities the commission of one or more of [certain specified criminal
acts].†(§ 186.22, subd. (f).) The crimes Corporal Nishida identified as the
Coors gang’s primary activities are among the specified criminal acts that
satisfy this definition. The challenged
testimony is thus directly relevant to the gang-related charges and not unduly
prejudicial. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 323 [evidence of prior
criminal acts specified in statutory definition of criminal street gang is
admissible to establish the primary activities of the gang].) Its admission was not an abuse of discretion.
The evidence regarding Wisler’s tattoos and his
possession of a book about Nazi Germany was admissible as foundation evidence
for Corporal Nishida’s opinion regarding Wisler’s participation in the Coors
gang. (See People v. Gardeley (1996) 14 Cal.4th 605, 618 [expert witness may
describe the facts upon which his opinion is based so long as it is material of
a type that is reasonably relied upon by experts in the field].) Although such evidence may have been damaging
to Wisler’s defense, its probative value was not substantially outweighed by
any undue prejudice. (See Evid. Code,
§ 352; People v. Gionis (1995) 9
Cal.4th 1196, 1214 [prejudice in this context is not the prejudice or damage to
a defense that naturally flows from probative evidence; rather, it is evidence
that uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues].) Finally, Corporal Nishida’s testimony
regarding the concept of putting in work for a gang was relevant to the issue
of motive for the attack on Cortez and not unduly prejudicial.
Wisler’s reliance on Albarran
is misplaced. In that case, the
defendant was charged with numerous crimes, but not the substantive gang
participation crime. (
Cal.App.4th at p. 219.) A gang
enhancement, however, was alleged. (
During trial, there was extensive evidence regarding a criminal street
gang whose members committed robberies, driveby shootings, carjackings, and
vandalism. (Id. at pp. 220-221.) Three
sheriff’s deputies testified that the defendant was a member of that gang. (Id.
at p. 220.) A jury convicted the
defendant of attempted murder, shooting at an inhabited dwelling, and attempted
kidnapping for carjacking, and found the gang enhancement allegation true. (Id.
at p. 217.) The trial court granted the
defendant’s motion for a new trial as to the gang enhancement because the
evidence was insufficient to support the allegation. (Id.
at pp. 222, 225.) However, it denied the
motion as to the underlying counts. (
The issue on appeal in Albarran was whether the court erred in denying the motion for a
new trial on the underlying counts in light of “extremely inflammatory gang
evidence†that “had no connection to these crimes.†(People
v. Albarran, supra, 149 Cal.App.4th at p. 227.) Reviewing the matter de novo, the Court of
Appeal reversed. The court explained
that the “panoply of incriminating gang evidence, which might have been
tangentially relevant to the gang allegations,†the court explained, “had no
bearing on the underlying charges.†(
Furthermore, some of the “gang evidence admitted was so extraordinarily
prejudicial and of such little relevance that it raised the distinct potential
to sway the jury to convict regardless of [the defendant’s] actual guilt.†(Id.
at p. 228.)
Here, there is no challenge to the sufficiency of the
evidence to support the gang participation count and the gang enhancement
allegations. In contrast to the
situation in Albarran, in which gang
evidence “had no bearing on the underlying charges,†the gang evidence about
which Wisler complains is highly relevant to the gang charges in this
case. As explained above, the evidence
of the gang’s primary activities was essential to proving elements of the gang
participation and gang enhancement allegation, evidence regarding Wisler’s
tattoos and book on Nazi Germany were proper to support Corporal Nishida’s
opinion testimony, and testimony regarding putting in work for the gang was
relevant to motive. Albarran is thus easily distinguishable.
Because the challenged evidence was highly probative of
issues in the case and not unduly prejudicial, we reject Wisler’s argument that
such evidence deprived him of due process or his right to a fair trial.
C. Instructions
on Aiding and Abetting and Natural and Probable Consequences Doctrine
The court’s instructions to the juries permitted the
juries to convict defendants of attempted murder based on aiding and abetting
and the natural and probable consequences doctrine. Under this doctrine, “a person encouraging or
facilitating the commission of a crime could be held criminally liable not only
for that crime, but for any other offense that was a ‘natural and probable
consequence’ of the crime aided and abetted.â€
(People v. Prettyman (1996) 14
Cal.4th 248, 260.) Thus, in this case,
the juries could have convicted defendants of attempted murder if defendants
intended to commit no crime greater than assault with force likely to inflict
great bodily injury, that defendants aided and abetted a compatriot who
attempted to kill Cortez, and the attempted murder was a natural and probable
consequence of the assault.
Defendants contend this doctrine should not apply in
cases such as this in which the intended (or “targetâ€) crime is assault and the
charged (or “nontargetâ€) crime is attempted murder because the target and
nontarget crimes have “merged.â€
Defendants do not cite to any authority directly supporting their
argument. Indeed, they acknowledge that
courts have addressed and rejected the argument. (See, e.g., People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177-1178;
Cal.App.4th 1180, 1190.) Instead,
defendants contend the merger doctrine announced in People v. Ireland (1969) 70 Cal.2d 522 and refined in
should be extended to preclude murder or attempted murder convictions based on
aiding and abetting and the natural and probable consequences doctrine. We reject the argument.
Under the common law second degree felony-murder rule,
the prosecution is not required to prove the defendant’s actual malice when an
unlawful killing occurs in the course of the commission of a felony (other than
the felonies enumerated in section 189) that is inherently dangerous to human
life. (People v. Robertson (2004) 34 Cal.4th 156, 165, overruled on
another point in People v. Chun, supra,
45 Cal.4th at p. 1201; People v. Ireland,
supra, 70 Cal.2d at p. 538.) This
rule was limited in Ireland, when our
state Supreme Court held that “a second degree felony-murder instruction may
not properly be given when it is based upon a felony which is an integral part
of the homicide and which the evidence produced by the prosecution shows to be
an offense included in fact within
the offense charged.†(
omitted.) The court explained that the
use of the felony-murder rule under such circumstances “would effectively
preclude the jury from considering the issue of malice aforethought in all
cases wherein homicide has been committed as a result of a felonious assault—a
category which includes the great majority of all homicides.†(Ibid.)
In Chun, the
Supreme Court reexamined the Ireland
merger doctrine and concluded that “[w]hen the underlying felony is assaultive
in nature . . . , the felony merges with the homicide and cannot
be the basis of a felony-murder instruction.
An ‘assaultive’ felony is one that involves a threat of immediate
violent injury.†(People v. Chun, supra, 45 Cal.4th at p. 1200.) Thus, in a prosecution for second degree
murder in a case in which a homicide resulted from the defendant’s assaultive
felony (and not a felony enumerated in section 189), the People must prove the
defendant acted with malice.
Defendants argue that the merger doctrine should be
extended to the aiding and abetting context such that the prosecution must
prove that defendants acted with malice—that is, with the intent to kill or
with conscious disregard for life. By
permitting the juries to convict them based on aiding and abetting and the
natural and probable consequences doctrine, they argue, the prosecution was
relieved of the requirement of proving the essential element of malice and
thereby deprived them of their constitutional right to due process.
A similar argument was addressed in People v. Francisco, supra, 22 Cal.App.4th 1180. That court rejected the argument,
stating: “[A]iding and abetting is one
means under which derivative liability for the commission of a criminal offense
is imposed. It is not a separate criminal
offense. [Citation.] As an aider and abettor, it is the intention
to further the acts of another which creates criminal liability. The ‘“natural and probable consequencesâ€â€™
[jury instruction,] which allows a finder of fact to render a verdict on derivative
aider and abettor liability, presents an ‘all-encompassing standard for proper
lay application of law to relevant evidence on the issue of legal causation of
a criminal act.’ [Citation.] If the principal’s criminal act which is
charged to the aider and abettor is a reasonably foreseeable consequence to any
criminal act of that principal, and is knowingly aided and abetted, then the
aider and abettor of such criminal act is derivatively liable for the act
charged. [Citation.] For this reason, the logical and legal
impediments to criminal liability as found in Ireland are not applicable and do not have persuasive value with
respect to limiting an aider and abettor’s liability.†(Id.
at p. 1190.)
The Francisco
court continued: “Appellant argues that
the giving of [a natural and probable consequences instruction] means that
appellant could be found guilty without a finding that he shared the
perpetrator’s intent to kill. As
previously noted, this is not the test for aider and abettor liability. Such liability is a question of legal
causation which is independent of any intent that the result in question
occurred. [Citation.] Thus, the ultimate factual question is whether
the perpetrator’s criminal act, upon which the aider and abettor’s derivative
criminal liability is based, was ‘“reasonably foreseeableâ€â€™ or the probable and
natural consequence of a criminal act encouraged or facilitated by the aider
and abettor. [Citation.]†(People
v. Francisco, supra, 22 Cal.App.4th at p. 1190.)
In Karapetyan,
the defendant was among several persons who chased after and hit or stabbed the
victim, causing the victim’s death. (
Cal.App.4th at p. 1175.) The jury was
instructed that “an aider and abettor to assault could be liable for murder if
death was a natural and probable consequence of the assault.†(Id.
at pp. 1176-1177.) The defendant, like
defendants in this case, argued that a finding of murder based on the
instruction “is really just felony murder, which is barred by [
at p. 1177.) The court rejected the
argument. It explained: “[T]he natural and probable consequences
doctrine operates independently of the second degree felony-murder rule. [Citation.]
The natural and probable consequences doctrine does not merge all
assaults into the felony-murder rule.
Rather, it is a theory of liability for murder that applies when the
assault has the foreseeable result of death.
For aider and abettor liability, it is the intention to further the acts
of another that creates criminal liability and not the felony-murder rule. [Citation.]
[¶] ‘An aider and abettor’s
derivative liability for a principal’s criminal act has two distinct
prongs: First, the aider and abettor is
liable for the particular crime that to his knowledge his confederates are
contemplating. Second, the aider and
abettor is also liable for the natural and probable consequences of any
criminal act he knowingly and intentionally aids and abets . . . . [¶]
. . . The law’s policy is simply to extend criminal liability
to one who knowingly and intentionally encourages, assists, or influences a
criminal act of another, if the latter’s crime is naturally and probably caused
by (i.e., is the natural and probable consequence of) the criminal act so
encouraged, assisted, or influenced.’
[Citation.] Accordingly, the
logical and legal impediments to felony-murder liability discussed in
limit the liability of an aider and abettor.
[Citation.]†(
The reasons given by the Francisco and Karapetyan
courts apply with equal force to defendants’ argument in this case. The merger rule is a response to and
limitation upon the second degree felony-murder rule. Because criminal liability based on aiding and
abetting and the natural and probable consequences doctrine is independent of
the second degree felony-murder rule, the merger rule has no application in the
aiding and abetting context.
Defendants argue, however, that Francisco and Karapetyan
must be reexamined because they were decided before Chun. We disagree. Chun
clarified the felony-murder rule; it did not address aiding and abetting
liability or the natural and probable consequences doctrine, and there is
nothing in the opinion that casts doubt upon the analyses or holdings of
felony-murder rule and the natural and probable consequences doctrine continue
to operate, as the Karapetyan court
explained, independently of each other.
Defendants also rely on People v. McCoy (2001) 25 Cal.4th 1111. According to defendants’ interpretation of
be convicted of murder, the prosecutor must prove he independently harbored the
requisite malice and cannot rely on the mens rea of an accomplice.†This is a misreading of McCoy. As the Supreme Court
explained in that case, “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, for example,
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.†(Id. at p. 1117, italics added.)
Contrary to defendants’ reading of McCoy,
it is clear that the prosecutor is not
required to prove that an aiding and abetting defendant independently harbored
the requisite malice for murder when the murder (or attempted murder) was a
natural and probable consequence of the crime intended by the aider and
abettor.
For all the foregoing reasons, we reject defendants’
arguments regarding the jury instructions on aiding and abetting and the
natural and probable consequences doctrine.
D. Sufficiency
of the Evidence to Support the Jury’s Finding of Premeditation and Deliberation
Wisler contends the evidence was insufficient to support
the jury’s finding that he committed attempted murder with premeditation and
deliberation. We disagree.
In reviewing a challenge to the sufficiency of evidence,
we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could have found beyond a reasonable doubt that the attempted murder was
willful, deliberate, and premeditated. (
1056, 1068-1069; People v. Johnson
(1980) 26 Cal.3d 557, 578.) In
determining whether the record contains substantial evidence of premeditation
and deliberation, we draw all reasonable inferences in support of the
finding. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) When the circumstances reasonably justify the
jury’s findings, a reviewing court’s opinion that the circumstances might also
be reasonably reconciled with contrary findings does not warrant reversal of
the judgment. (People v. Mendoza, supra,
at p. 1069.)
“‘[A]ttempted murder requires the specific intent to kill
and the commission of a direct but ineffectual act toward accomplishing the
intended killing.’†(
739.) The punishment for attempted
murder is increased when the murder attempted was “willful, deliberate, and
premeditated.†(§ 664, subd. (a);
656-657.) An attempted murder is
“premeditated and deliberate if it occurred as the result of preexisting
thought and reflection rather than unconsidered or rash impulse.†(People
v. Stitely (2005) 35 Cal.4th 514, 543.)
“‘“‘Deliberation’ refers to careful weighing of considerations in
forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]â€
[Citation.] “‘Premeditation and
deliberation can occur in a brief interval.
“The test is not time, but reflection. ‘Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived at
quickly.’â€â€™ [Citation.]†[Citations.]’
[Citation.]†(
In People v. Anderson
(1968) 70 Cal.2d 15 (Anderson), the
California Supreme Court identified three types or categories of evidence
pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3)
manner of killing. (People v. Perez, supra, 2 Cal.4th at p. 1125.) The Anderson
court observed that courts typically sustain premeditation and deliberation
findings “‘when there is evidence of all three types and otherwise requires at
least extremely strong evidence of (1) or evidence of (2) in conjunction with
either (1) or (3).’†(
quoting People v. Anderson, supra, at
p. 27.)
In other words, courts have generally found sufficient
evidence of premeditation and deliberation when “‘(1) there is evidence of
planning, motive, and a method of killing that tends to establish a
preconceived design; (2) extremely strong evidence of planning; or (3) evidence
of motive in conjunction with either planning or a method of killing that
indicates a preconceived design to kill.’â€
(People v. Tafoya (2007) 42
Cal.4th 147, 172.) However, these
categories of evidence are not the exclusive means of establishing
premeditation and deliberation (ibid.),
and “need not be present in any particular combination to find substantial
evidence of premeditation and deliberation.â€
(People v. Stitely, supra, 35
Cal.4th at p. 543.) Other types or
combinations of evidence may also support a premeditation finding. (People
v. Perez, supra, 2 Cal.4th at p. 1125; People
v. Anderson, supra, 70 Cal.2d at pp. 26-27.) When all three Anderson factors are present, however, a finding of premeditation
and deliberation will generally be upheld.
(People v. Stitely, supra, at
p. 543.)
In his brief, Wisler points out that he was 17 years old
at the time of the attack, younger than his codefendants, and had no prior
criminal record. “He had grown up with a
lot of people in Coors and associated with them but was not a member,†and he
“said ‘White Power’ to seem cool in front of his friends.†He adds that he was drunk when he and others
“rushed out and punched and stomped Cortez, who then ran towards the pool. They caught up with him and punched and
stomped him on the head.†Based on these
facts, he argues, there was no evidence he deliberated and premeditated before
following his cohorts and participating in the attack.
Wisler’s analysis is focused on whether he
killing Cortez. However, the prosecution
was not required to prove his personal
premeditation and deliberation; the crime of attempted murder requires “that
the murder attempted must have been willful, deliberate, and premeditated,
with deliberation and premeditation.†(
622.) Thus, one who aids and abets
another in committing attempted murder can be subject to the greater punishment
for willful, deliberate, and premeditated attempted murder even though he or
she did not personally act with the requisite willfulness, deliberation, and
premeditation. (Id. at pp. 616, 627.) This
is true even when liability for the attempted murder is based on the natural
and probable consequences doctrine. (See
People v. Favor (2012) 54 Cal.4th
868, 879-880; People v. Cummins
(2005) 127 Cal.App.4th 667, 680; People
v. Curry (2007) 158 Cal.App.4th 766, 791-792.) The question, therefore, is not whether
Wisler acted with willfulness, deliberation, or premeditation, but whether
there is substantial evidence that the attempted murder of Cortez was
“‘committed by one of the perpetrators with the requisite state of mind.’ [Citation.]â€
(People v. Favor, supra, at p.
879.)
There is substantial evidence that at least one
perpetrator of the attack acted willfully and with deliberation and
premeditation in attempting to kill Cortez.
Initially, Richardson fought with Cortez, whom Richardson suspected of
trying to break into Siewert’s car.
Siewert then joined in the fight, knocking Cortez down. When Cortez got up, Siewert told him to “get
the fuck out of here.†Cortez ran
away. At this point during the incident,
there is no substantial evidence of premeditation or deliberation regarding
killing Cortez; it appears that Richardson and Siewert intended to inflict a
beating on Cortez because they believed he was trying to break into Siewert’s
car, nothing more.
However, based on what happened next, the jury could
conclude that the nature and purpose of the attack shifted from punishing
Cortez for attempting to break into a car to a gang-based, racially motivated
attack on Cortez’s life. After Cortez
fled, five or six members or associates of the Coors White supremacist gang
chased after Hispanic Cortez amid shouts of “White Power†and “Coors Up.†There was evidence from Thibault and Corporal
Nishida regarding the use of violence as a means of putting in work for the
gang, that murder and attempted murder are among the Coors gang’s primary
activities, and that the gang’s notoriety is proportional to the heinousness of
the gang’s crimes. There is thus
evidence of a motive for killing Cortez—to put in work for the gang and
increase the gang’s notoriety.
When the group caught up with Cortez, he was not merely
punched and kicked; Hayes stomped on Cortez’s head by jumping and landing on
his head with both feet; O’Brien also stomped on his head. They continued to kick Cortez even after he
lost consciousness. In light of the
evidence regarding the Coors gang’s culture of violence and the excessive
brutality of the beating, jurors could conclude that one or more of the
perpetrators chased after and attacked Cortez with a plan to beat him until he
was dead. Although the period of time
involved in the chase and the beating was brief, it was long enough to permit
the reflection required for deliberation and premeditation. Accordingly, the evidence is sufficient to
support Wisler’s jury’s finding that the attempted murder was willful,
deliberate, and premeditated.
E. Failure
to Stay Sentence on Active Participation Count Under Section 654
As to each defendant, the court imposed sentences for the
convictions of attempted murder (count 1), active participation in a criminal
street gang (count 2), and assault by means of force likely to cause great
bodily injury (count 3). Only the
sentence on count 3 was stayed pursuant to section 654. For Hayes and O’Brien, the court imposed a
consecutive term of eight months, reflecting one-third of the midterm sentence
of two years, for count 2. Wisler
received a consecutive term of three years, reflecting one-third of the upper
term, on count 2. Defendants argue their
sentences for active gang participation under count 2 must be stayed pursuant
to section 654. The Attorney General
agrees.
Generally, under section 654, when a court imposes
sentences on multiple convictions that arise out of a single act or omission,
only the sentence for the longest potential term is executed; the other
sentences are stayed. (§ 654;
722; People v. Siko (1988) 45 Cal.3d
820, 823.) One element of the gang
participation crime under section 186.22, subdivision (a) is that the defendant
willfully promote, further, or assist in felonious criminal conduct by members
of a gang in which the defendant actively participates. (People
v. Albillar (2010) 51 Cal.4th 47, 56.)
When the defendant is convicted of both the gang participation crime and
the crime that satisfies the promote-further-assist element of the gang crime,
section 654 precludes punishment for both crimes. (People
v. Mesa (2012) 54 Cal.4th 191, 197-198; People
v. Sanchez (2009) 179 Cal.App.4th 1297, 1315-1316 [Fourth Dist., Div. Two],
disapproved on another point in People v.
Rodriguez (2012) 55 Cal.4th 1125, 1137, fn. 8.)
Here, defendants were convicted of
active gang participation. As the
Attorney General concedes, the only evidence of felonious conduct presented for
the promote-further-assist element of the gang participation crime was evidence
of the underlying assault and attempted murder.
Defendants could, therefore, be punished only once for the multiple
crimes. (See People v. Mesa, supra, 54 Cal.4th at pp. 197-198;
Cal.App.4th at p. 1315.) Because the
conviction with the longest potential term is attempted murder under count 1,
the sentence on count 2 for active gang participation must be stayed.
IV. DISPOSITION
The judgment is modified such that the sentence on count
2 for each defendant shall be stayed pursuant to section 654. As modified, the judgments are affirmed. The trial court is directed to prepare a
minute order and amended abstracts of judgment reflecting the
modifications. The trial court is
further directed to forward a copy of the minute order reflecting the court’s
modifications of the judgments and the amended abstracts of judgment to the
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
McKINSTER
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] As
part of a plea bargain, Thibault pled guilty to attempted murder in this case
without premeditation or a gang enhancement.
In exchange, he was required to tell the truth at the trial of his
codefendants.
