P. v. Ouellette
Filed 8/10/12 P. v.
Ouellette CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sutter)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
AARON RICHARD OUELLETTE et al.,
Defendants and
Appellants.
C065374
(Super.
Ct. No. CRF072832)
Six percipient
witnesses testified consistently to all or part of the narrative the
prosecution argued to the jury -- that two inebriated gang members robbed
a man on a bike in the middle of the night in a dark alley, kicked him in the
head and ribs as he lay on the ground, jumped in their truck and rolled over
him several times, moved forward then stopped and looked under the truck,
accelerated down the street with the man stuck in the tire well, turned the
corner, parked the truck, and took off running.
Following a joint trial, a jury convicted defendants Aaron Richard
Ouellette and Michael Angelo Sanudo of first
degree murder, robbery, active participation in a criminal street gang, and
assault, and found true the special circumstance that the murder was
committed during a robbery.
Ouellette
testified he did not rob the decedent, Willie Dean Roberts, Jr., did not intend
to hurt him, and did not know that he had run over him or dragged him under the
truck for approximately 730 feet. Sanudo
did not testify, but his lawyer argued he committed no crime; rather, he was
unfortunately at the wrong place at the wrong time. On appeal, both defendants attempt to retry
their case, casting aspersions on the credibility of the percipient witnesses
and insisting that the killing was an accident unrelated to any gang
activity. They raise a host of meritless
challenges to the jury instructions and the sufficiency of the evidence. We affirm.
FACTS
Two skilled
defense lawyers subjected all six percipient witnesses to grueling
cross-examination. As a result, the jury
was well acquainted with the weaknesses in their abilities to perceive and
recall what they heard and saw in the wee morning hours of September 29, 2007. Most notably, five of the six had been
drinking, and most of them testified to facts they had not disclosed to the
police officers at the scene of the crimes or shortly thereafter. They were emotionally traumatized by the
grisly death they witnessed and, for some, they had difficulty testifying about
the events two and a half years later.
Viewing the evidence, however, in the light most favorable to the
prosecution, as we must, the witnesses provide a chilling account of what
defendants did and said to the victim.
Riki Clark and
Erica Hill were outside Clark’s apartment under a
carport smoking when Roberts rode by on his bicycle. Shortly thereafter they saw three people in a
fight. Hill heard defendants ask
Roberts, “What do you got for us, nigger” and then demand, “Give us what you
got for us, nigger.” She saw the driver,
Ouellette, push Roberts off his bike.
Both Clark and Hill saw defendants kicking him; Ouellette kicked Roberts
in the face six to seven times while Sanudo kicked him in the ribs. Ouellette rifled through Roberts’s pockets,
and papers were “flying in the air” and onto the ground. Ouellette stuffed some of the items into his
own pockets and Sanudo kicked Roberts again.
According to Hill,
defendants then got into their truck and backed up over the victim, going
forward and back about three times in the carport driveway. Roberts became lodged near the pickup’s right
front tire. Sanudo leaned out of the
passenger window and looked toward the front of the truck. He then opened the front door, looked under
the front right tire, and kicked Roberts in the head four times. Ouellette went forward and then in reverse a
couple more times, but Roberts remained lodged under the pickup. Hill chased after the truck. But the driver stopped, got out, and lifted
his shirt to expose what Hill thought was a gun near his belt buckle. She ran away.
With Roberts still trapped, Ouellette got back into the truck and drove
down the alley.
Three of the other
witnesses were together at Latoya Perico’s apartment. Naqueita Cox and Latoya Shaw were on the
balcony overlooking the alley when they heard tires screeching. Cox reported that it sounded like teenagers
“burning rubber.” She testified that the
truck stopped and either the driver or the passenger got out, looked at the
body under the truck, and then got back into the truck. Shaw testified they both got out of the truck
to look under it, and they got back in together. Perico testified that after hearing Cox shout
that someone was trapped under the truck, she ran outside and saw two men get
out of the truck, get back in, and drive away.
Christina Dearden
was the sixth neighbor to testify. From
her bedroom, she heard screeching tires.
She looked out her window and saw a white driver and a Mexican passenger
get out of a truck. At the preliminary
hearing she testified that the passenger looked under the truck and ran away
while the driver walked away, but at trial she testified it was the passenger
who looked under the truck and walked away while the driver immediately ran
away.
As mentioned
above, defendants attempted to impeach all six witnesses by demonstrating
inconsistencies in their testimony and their failure to disclose pertinent
details on the night of the murders. All
but Dearden had been drinking. Moreover,
defendants insisted that the forensic evidence did not support the eyewitness
accounts.
For example, the
pathologist testified that Roberts’s injuries were consistent with being
trapped under the truck and dragged, and not with being run over multiple times
as Hill had testified. Moreover, there
was no blood or body tissue in the driveway area where defendants purportedly
ran over the victim. Nor was there any
blood on either of defendants’ shoes or fingerprints on any of the contents of
the victim’s wallet.
The first police
officer on the scene noticed a large pool of blood, a bicycle, and papers in
the alley. He followed the trail of
blood to a blue pickup truck parked approximately 730 feet away. He saw the bottom of Roberts’s shoe sticking
out from beneath the truck. Roberts remained
pinned under the front tire. Other
officers found Roberts’s wallet in the alley with some of its contents strewn
next to it.
A toxicologist
testified that based on blood samples taken the next morning from defendants,
Ouellette’s blood alcohol level would have been about .19 percent and Sanudo’s
would have been about .15 percent at the time of the incident.
A gang expert
testified that both defendants were active Norteño gang members on September 29, 2007. Both had admitted to being gang members on
multiple occasions. They had gang
tattoos, accompanied other gang members, and frequented gang areas. The expert explained the primary activities
of the Norteño gang
included battery, mayhem, assault with a
deadly weapon, attempted murder, and murder. He testified to numerous predicate offenses,
which are not challenged on appeal. When
given a hypothetical situation involving facts similar to what occurred in the alley on September 29, he opined that
the crime was committed in association with the Norteño street gang, furthered the criminal conduct of the
Norteño street gang,
and benefited the Norteño
street gang.
Ouellette
testified in his own defense. He
disputed the eyewitness testimony and asserted that all six witnesses were
wrong. He did not initiate a fight with
Roberts, he did not threaten him verbally, he did not kick or stomp him, he did
not take anything from him, he did not intend to hurt him, and he did not know
the man was stuck under the truck.
Rather, he claimed it was Roberts who had started the fight after he
asked Roberts for a cigarette. Ouellette
merely tried to defend himself; indeed, he could not strike the victim because
his arm was injured. He was intoxicated
when he got into the truck, the radio was blasting, and when he had difficulty
steering the truck on the wet pavement he believed he had a flat tire. He parked the truck in front of Sanudo’s
mother’s apartment and ran because he was being pursued by people he did not
know, and as an intoxicated parolee, he wanted to avoid arrest.
The prosecution
introduced evidence of gang indicia Sanudo possessed in jail, including a
picture of his son in a red jersey with the number 14 on it. The color red and the number 14, the gang
expert instructed the jury, were commonly associated with the Norteños. Sanudo was also in possession of a letter
that outlined the history of the Norteño
gang.
Sanudo did not
testify, but his son’s godmother testified that she gave her godson the red
shirt, and she had no familiarity with gangs or the symbolism associated with
the color or number. His girlfriend
testified that Sanudo had never claimed to be a Norteño.
The jurors
deliberated for 13 hours over two days and asked for Hill’s testimony to be
reread. They found defendants guilty of
murder and found the robbery special circumstance true, but acquitted on both
the torture and gang special circumstance allegations. The jury found them guilty of robbery but
found not true the allegations that the defendants inflicted great bodily
injury during the robbery and committed the robbery to promote a gang. The jury found defendant Sanudo guilty but
acquitted Ouellette of active participation in a criminal street gang. They were both acquitted of assault with a
deadly weapon, but convicted of the lesser included offense of simple assault.
The court
sentenced defendants to life in prison without the possibility of parole. All other terms of imprisonment were
stayed. (Pen. Code, § 654.)[1]
DISCUSSION
I
Instructional Error
A. Lesser Included Offense by
Tacking on the Enhancement
Criminal
defendants have tried time and time again to append the enhancing allegations
to the charged offense. And, over time,
the California Supreme Court has rejected a stream of creative variations of
the same argument in very different contexts.
For example, sentence enhancements are not the “functional equivalent”
of elements of the greater offenses for double jeopardy purposes (
47 Cal.4th 125, 137-138 (Porter)),
nor do convictions on offenses and enhancements offend the prohibition for
multiple convictions (People v. Sloan
(2007) 42 Cal.4th 110, 119-120 (Sloan)). Despite an unbroken line of persuasive
authority to the contrary, defendants boldly ask us to chart a new course in
light of Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi)
and its progeny by finding that the great bodily injury enhancement is an
element of the crime of robbery and therefore the trial court erred by failing
to instruct sua sponte that assault was a lesser included offense of robbery. The California Supreme Court has soundly and
repeatedly rejected the very premise of defendants’ argument.
In
the trial court should have instructed the jury sua sponte that assault with a
deadly weapon is a lesser included offense in a charge of robbery enhanced by
use of a firearm. (Id. at p. 96.) Rejecting the
defendant’s attempt to merge the allegations pertaining to the charged offense
with the allegations pertaining to an enhancement, the court held that among
other glaring deficiencies a “use” enhancement is “not part of the accusatory
pleading for the purpose of defining lesser included offenses . . . .” (Ibid.) The Supreme Court relied on the fact that the
majority of Court of Appeal decisions have held that “‘an allegation of firearm
use for purposes of Penal Code section 12022.5 is not to be considered in
determining whether the accusation encompasses a lesser included offense.’ [Citations.]”
(Wolcott, at pp. 100-101.)
On this point the
at p. 119, footnote 4 reiterated, “Wolcott
. . . held that enhancements are not considered part of an accusatory pleading
for purposes of defining or instructing sua sponte on lesser offenses of which
a defendant might be convicted.” More
emphatically, the court admonished, “Appellant cites no cases, and our research
discloses none, that permit considering enhancements for determining lesser
included or necessarily included offenses for any purpose.” (Id.
at p. 120.)
Similarly, in
People v. Seel (2004) 34 Cal.4th 535,
550, footnote 6, the defendant again attempted to combine the offense with an
enhancement, this time to set the stage for a double jeopardy claim. The Legislature had determined that an
attempted murder that was premeditated merited greater punishment than other
attempted murders. The jury convicted
the defendant of attempted murder but hung on the enhancement. The defendant claimed that the failure to
convict him of the greater offense amounted to an acquittal for double jeopardy
purposes.
Not so, concluded
the Supreme Court once again. “Under
both federal and California law, greater and lesser included offenses
constitute the ‘same offense’ for purposes of double jeopardy.” (Bright,
supra, 12 Cal.4th at p. 660.) And it is true that, pursuant to section
1023, an acquittal is a bar to another prosecution for any necessarily included
offense a defendant might have been convicted of under the charges set forth in
the accusatory pleading. (
suggestion that the offense, coupled with the enhancing allegation, constituted
a greater degree of the offense of attempted murder. “[W]e conclude that the provision of section
664, subdivision (a), prescribing a punishment of life imprisonment with the
possibility of parole for an attempt to commit murder that is ‘willful,
deliberate, and premeditated’ does not establish a greater degree of attempted
murder but, rather, sets forth a penalty provision prescribing an increased
sentence (a greater base term) to be imposed upon a defendant’s conviction of
attempted murder when the additional specified circumstances are found true by
the trier of fact.” (
returned a verdict on the underlying offense, but is unable to make a finding
on the penalty allegation, does not constitute an ‘acquittal’ of (or otherwise
bar retrial of) the penalty allegation on the ground of double jeopardy.” (Id.
at pp. 661-662.)
Defendants insist
that the logic of Wolcott and
States Supreme Court in Apprendi,
supra, 530 U.S. 466. In Apprendi,
the high court described sentence enhancements as the “functional equivalent”
of elements of greater offenses. (
into the offenses and the consolidated greater offenses are born. The California Supreme Court has considered
and rejected the creative engineering of the Apprendi functional equivalent model to fit scenarios far removed
from the context in which Apprendi
was designed.
After all,
constitutional challenge to imposition of increased punishment for an
enhancement in the absence of a jury finding beyond a reasonable doubt. For purposes of the Fifth Amendment right to
due process and the Sixth Amendment right to a jury trial made applicable to
the states through the Fourteenth Amendment, the United States Supreme Court
held that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi,
supra, 530 U.S. at p. 490.)
Defendants have
transported the “functional equivalent” idea into far-off frontiers with
little, if any, success. Divorced from
California Supreme Court recently “rejected the notion that the high court’s
‘functional equivalent’ statement requires us to treat penalty allegations as
if they were actual elements of offenses for all purposes under state
law.” (Porter, supra,
47 Cal.4th at p. 137.) In
126, the court “held that Apprendi
did not convert conduct enhancements into offenses for purposes of our rule
that multiple convictions may not be imposed for necessarily included
offenses.” (Porter, at p. 137, citing Izaguirre,
at p. 134.) Similarly, in
that Apprendi converted the penalty allegations
into actual elements of greater offenses for purposes of the statutory double
jeopardy protection of section 1023.
(Porter, at p. 138.)
Thus,
foundation established in Wolcott,
and reinforced in Bright, that “allegations
of sentencing enhancements should not be considered in applying the accusatory
pleading test to determine a trial court’s sua sponte duty to instruct the jury
regarding lesser included offenses.” (
1235 (conc. & dis. opn. of Moreno, J.).)
We agree with the Attorney General that there is nothing in the
reasoning of Apprendi or its progeny
that undermines the validity of Wolcott. The court did not have a sua sponte
obligation to instruct on simple assault because the great bodily injury
enhancement is not properly considered an element of the crime of robbery.
B. Corpus Delicti and Proof Beyond a
Reasonable Doubt
The trial court
instructed the jury in the language of CALCRIM No. 220 that the prosecution bears
the burden of proof beyond a reasonable doubt, that the jury must consider all
of the evidence, and that defendants are entitled to an acquittal unless the
evidence proves they are guilty beyond a reasonable doubt.
The proof beyond a
reasonable doubt burden of proof was reiterated in CALCRIM No. 359. Nevertheless, defendants contend that CALCRIM
No. 359 impermissibly diluted the prosecution’s burden of proof. The instruction reads: “The defendant may not be convicted of any
crime based on his out-of-court statements alone. You may only rely on the defendant’s
out-of-court statements to convict him if you conclude that other evidence
shows that the charged crime or a lesser included offense was committed. [¶]
That other evidence may be slight and need only be enough to support a
reasonable inference that a crime was committed. [¶]
The identity of the person who committed the crime and the degree of the
crime may be proved by the defendant’s statements alone. [¶]
You may not convict the defendant unless the People have proved his
guilt beyond a reasonable doubt.”
According to
defendants, the culprit that dilutes the prosecution’s burden of proof is the
language “the degree of the crime may be proved by the defendant’s statements
alone.” Defendants insist the jury’s
most essential task in this trial was to determine the degree of the murder,
and their out-of-court statements alone do not constitute proof beyond a
reasonable doubt that they committed murder in the first degree. Thus, in their view, CALCRIM No. 359 gave the
jury the unconstitutional option to convict them of first degree murder based
on scant evidence of their out-of-court statements that does not amount to
proof beyond a reasonable doubt. They
hold up Francis v. Franklin (1985) 471
U.S. 307 [85 L.Ed.2d 344] (Franklin)
as the legal authority requiring us to reverse their judgments of
conviction. Franklin, properly read, does not compel reversal.
In
contradictory, mandatory, and confusing instructions. Like here, the jury was properly instructed on
the prosecution’s burden of proof beyond a reasonable doubt. But the jurors were also told that “‘[t]he
acts of a person of sound mind and discretion are presumed to be the product of
the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is
presumed to intend the natural and probable consequences of his acts but the
presumption may be rebutted.’” (
The test is what a reasonable juror could have understood the charge to
mean. (Id. at p. 315.) “The federal
constitutional question is whether a reasonable juror could have understood the
two sentences as a mandatory presumption that shifted to the defendant the
burden of persuasion on the element of intent once the State had proved the
predicate acts.” (Id. at p. 316.)
The majority
concluded, “The challenged sentences are cast in the language of command. They instruct the jury that ‘acts of a person
of sound mind and discretion are presumed
to be the product of the person’s will,’ and that a person ‘
probable consequences of his acts,’ . . .
These words carry precisely the message of the language condemned in
presumes that a person intends the ordinary consequences of his voluntary
acts”’
. The jurors ‘were not told thatthey had a choice, or that they might
infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could
easily have viewed such an instruction as mandatory.’ Ibid.” (Franklin,
supra, 471 U.S. at p. 316.)
The permissive
language of CALCRIM No. 359 stands in stark contrast to the mandatory language
condemned in Franklin. In our case, the jury was told that
defendants’ statements alone “may” prove the degree of the crime. There is no mandatory presumption at issue. There is no “language of command.” Rather, the jury had the option to consider
defendants’ out-of-court statements and to determine whether they proved the
degree “beyond a reasonable doubt.”
Moreover, the very sentence that follows the targeted language reminds
the jurors, “You may not convict the defendant unless the People have proved
his guilt beyond a reasonable doubt.”
(CALCRIM No. 359.)
We must determine
whether there is a reasonable likelihood the jury understood the instruction in
a manner that violates defendants’ rights.
(People v. Andrade (2000)
85 Cal.App.4th 579, 585.) To assess
that likelihood, we must consider the instructions as a whole; we cannot
isolate any given instruction. (
1228, 1237; People v. Holt (1997) 15
Cal.4th 619, 677.) There is no support
in Franklin for defendants’ argument
that there is a reasonable likelihood the jurors viewed the permissive language
contained in CALCRIM No. 359 as a diminution of the prosecutor’s burden of
proof.
We find nothing
constitutionally infirm in CALCRIM No. 359.
Defendants’ instructional challenge is little more than a disguised
challenge to the sufficiency of the evidence.
They go to great lengths to describe the weaknesses in the scant
evidence of their out-of-court statements.
That evidence, they report, consisted exclusively of the derogatory term
“nigger,” followed by the query “[w]hat do you got for us” and defendant
Ouellette’s purported call to his mother that he had a flat tire. The question defendants raise, however, is
not whether there is sufficient evidence they committed murder in the first
degree, but whether the instruction diluted the prosecution’s burden of
proof. We conclude that CALCRIM No. 359,
as interpreted by a reasonable juror in the context of the entire charge to the
jury, could not have mistakenly been understood to allow the jury to convict
defendants of first degree murder by less than proof beyond a reasonable doubt.
C. Active Participation in a
Criminal Street Gang
Defendants next
assert that CALCRIM No. 1400 allowed the jury to convict them of active participation
in a criminal street gang on a theory that has no basis in state law. It takes some patience to unravel the meaning
of their argument, but once understood it can be easily and summarily rejected.
The court
instructed the jury in the language of CALCRIM No. 1400 as follows: “To prove that the defendant is guilty of
this crime, the People must prove that:
“1. The defendant actively participated in a
criminal street gang;
“2. When the defendant participated in the gang,
he knew that members of the gang engage in or have engaged in a pattern of
criminal gang activity;
“AND
“3. The defendant willfully assisted, furthered,
or promoted felonious criminal conduct by members of the gang either by:
“a. directly and actively committing a felony
offense;
“OR
“b. aiding and abetting a felony offense.”
As relevant here, CALCRIM No. 1400 explains the meaning of
“a pattern of criminal gang activity” as described in subparagraph 2 and
“felonious criminal conduct” as described in subparagraph 3. Defendants would have us assume the jurors
jumbled the meaning of the two subparagraphs, confused the two, and created
their own crime. We have no doubt that a
reasonable juror would not construe the instruction as defendants suggest to
reach the result they contend requires reversal.
To establish “a
pattern of criminal gang activity,” the jurors were told they could use the
following convictions: “vehicle theft,
extortion, possession of a concealed firearm in a vehicle, felony vandalism,
assault with a deadly weapon or by means of force likely to cause serious
bodily injury, or battery with serious bodily injury, or commission of murder,
robbery, or assault with a deadly weapon or by means of force likely to cause
serious bodily injury.” But the crimes
needed to establish the “felonious criminal conduct” described in subparagraph
3 were quite different. Indeed, CALCRIM
No. 1400 stated: “Felonious criminal
conduct means committing or attempting to commit any of the following
crimes: murder, robbery, assault with a
deadly weapon or by means of force likely to cause serious bodily injury. [¶] To
decide whether a member of the gang or the defendant committed murder, robbery,
or assault with a deadly weapon or by means of force likely to cause serious
bodily injury, please refer to the separate instructions that I have given you
on those crimes.”
Defendants argue
that the jurors may have used one of their predicate offenses, that is, crimes
that established a pattern of criminal gang activity in subparagraph 2, to
prove the felonious criminal conduct
described in subparagraph 3. Thus, they
surmise that the jurors found they either directly and actively committed “a
felony offense” or aided and abetted “a felony offense” not by finding they
committed murder, robbery, or assault with a deadly weapon, but by relying on
their aged predicate offense convictions of concealing a firearm in a vehicle
on March 22, 2006 (Ouellette) and vehicle theft on January 31, 2005 (Sanudo).
We conclude that a
reasonable juror would not engage in such mental gymnastics. First, as the Attorney General aptly points
out, CALCRIM No. 1400 specifically instructed the jurors that in order to
find “‘the defendant[s] willfully assisted, furthered, or promoted felonious
criminal conduct by members of the gang either by’ directly and actively
committing a felony or by aiding and abetting a felony, the jury was only to
consider the crimes of murder, robbery, and assault with a deadly weapon or by
means of force likely to cause serious bodily injury.” Those were precisely the crimes
simultaneously prosecuted against defendants.
Second, the prior convictions for concealing a weapon and vehicle theft,
the so-called predicate offenses, were not crimes that could be considered by
the jury to establish felonious criminal conduct. As a result, we conclude reasonable jurors,
applying the law as embodied in CALCRIM No. 1400, would not have convicted
defendants based on the commission of the predicate offenses, but understood
that the crime consisted of directly committing or aiding and abetting the much
more serious crimes of murder, robbery, and assault. There was no instructional error.
D. Motive
Defendant Ouellette
acknowledges the legal authority at odds with his final challenge to the jury
instructions, but presses us to reject People
v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes)
and assume that cases which rejected the same argument for one reason would have
accepted the argument for another reason.
Without authority, Ouellette boldly asserts the instruction that
informed the jury the prosecution did not need to prove motive (CALCRIM No.
370) impermissibly diluted the prosecution’s burden to prove his active
participation in a criminal street gang beyond a reasonable doubt. In the absence of any authority supporting
his argument or any confidence that a reasonable juror would have relied on the
motive instruction and failed to find the elements of the charged offense
beyond a reasonable doubt, we conclude Ouellette’s argument is without merit.
As described
above, the jury was instructed on each of the elements of the gang offense,
including the specific intent requirement; that is, “When the defendant participated
in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity.” Missing from any of the instructions
involving gang participation was any mention of motive. The trial court also instructed the jury: “The People are not required to prove that
the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however,
consider whether the defendant had a motive.
[¶] Having a motive may be a
factor tending to show that the defendant is guilty. Not having a motive may be a factor tending
to show the defendant is not guilty.”
In
that the motive instruction conflicted with the instructions on the substantive
offense and lessened the prosecution’s burden of proof. The court disagreed. “An intent to further criminal gang activity
is no more a ‘motive’ in legal terms than is any other specific intent. We do not call a premeditated murderer’s
intent to kill a ‘motive,’ though his action is motivated by a desire to cause
the victim’s death. Combined, the
instructions here told the jury the prosecution must prove that Fuentes
intended to further gang activity but need not show what motivated his wish to
do so. This was not ambiguous and there
is no reason to think the jury could not understand it. Fuentes claims the intent to further criminal
gang activity should be deemed a motive, but he cites no authority for this
position. There was no error.” (Fuentes,
supra, 171 Cal.App.4th at pp.
1139-1140.)
Ouellette insists
favor of “the real world meaning of the word.”
He offers an analogy to financial gain special circumstance cases as
authority we should rely on to reject Fuentes. In those cases, he asserts the Supreme Court
was comfortable interchanging “intent” and “motive.” (People
v. Carasi (2008) 44 Cal.4th 1263, 1308-1309; People v. Staten (2000) 24 Cal.4th 434, 461; People v. Edelbacher (1989) 47 Cal.3d 983, 1026-1027 (
financially from a murder is no different from an intent to do so.
Ouellette contends
that street terrorism, like the financial gain special circumstance, requires
the jury to determine “the reason a person chooses to commit a crime.” (People
v. Hillhouse (2002) 27 Cal.4th 469, 504.)
The jury was required in this case, according to Ouellette, to determine
if he robbed and killed Roberts to promote the felonious conduct of the Norteño gang. The problem with Ouellette’s analogy,
however, is that the Supreme Court repeatedly has rejected his argument. (Edelbacher,
supra, 47 Cal.3d at
p. 1027; People v. Riggs (2008)
44 Cal.4th 248, 314; People v. Crew
(2003) 31 Cal.4th 822, 845; People v.
Noguera (1992) 4 Cal.4th 599, 637.)
The adverse legal
authority does not deter Ouellette. He
believes the court rejected the argument only because the financial gain motive
was included in an enhancement, not as an element of the charged offense. In that case, he maintains the jurors would
not have applied the motive instruction to the enhancements. Here in “the real world,” he asserts the
jurors would interchange motive and intent because the motive relates to the
charged offense, not an enhancement, thereby lowering the prosecution’s burden
of proof. We disagree and accept the
compelling logic of Fuentes.
The court in
instruction from a reasonable juror’s perspective and found no ambiguity and
nothing to confuse a reasonable juror.
The jury was told the prosecution had to prove that the gang member
intended to further gang activity, but the prosecution did not need to
demonstrate what motivated his wish to do so.
The court further explained: “If
Fuentes’s argument has a superficial attractiveness, it is because of the
commonsense concept of a motive. Any
reason for doing something can rightly be called a motive in common language, including—but not limited
to—reasons that stand
behind other reasons. For example, we
could say that when A shot B, A was motivated by a wish to kill B, which in
turn was motivated by a desire to receive an inheritance, which in turn was
motivated by a plan to pay off a debt, which in turn was motivated by a plan to
avoid the wrath of a creditor. That is
why there is some plausibility in saying the intent to further gang activity is
a motive for committing a murder: A wish
to kill the victim was a reason for the shooting, and a wish to further gang
activity stood behind that reason. The
jury instructions given here, however, were well adapted to cope with the
situation. By listing the various
‘intents’ the prosecution was required to prove (the intent to kill, the intent
to further gang activity), while also saying the prosecution did not have to
prove a motive, the instructions told the jury where to cut off the chain of
reasons. This was done without saying
anything that would confuse a reasonable juror.” (Fuentes,
supra, 171 Cal.App.4th at p.
1140.) There was no error.
II
Sufficiency of
the Evidence
A. Active Participation in a
Criminal Street Gang
It appears from
their verdicts that this perceptive jury deciphered the important, but subtle,
distinction between the substantive offense of actively participating in a
criminal street gang and a gang enhancement.
The crime of so-called “street terrorism” need not be gang related,
whereas a gang enhancement requires a gang-related purpose. The jury convicted defendants of actively
participating in a criminal street gang but acquitted them of all gang-related
enhancements. Ignoring the distinction
between the two, defendants contend there is insufficient evidence to sustain
the jury’s verdict on the substantive offense.
Well-worn
principles of appellate review frame our analysis. “To assess the evidence’s sufficiency, we
review the whole record to determine whether any rational trier of fact could have found the essential elements
of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the
verdict—i.e., evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced
from the evidence.” (
175 Cal.App.4th 843, 850.) “If the
circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People
v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
Defendants assert
there was no evidence that the crimes they committed had anything to do with
their present or past affiliation with a gang.
They point out there was no evidence they were using gang signs,
confronting a rival gang member, shouting a gang name, or “flying their
colors.” Even the gang expert conceded
there was no evidence of “disrespect that [he could] cite that would require
retaliation.”
We agree with
defendants that any connection between the robbery and murder of Roberts and
the Norteños is thin indeed. If we were reviewing the sufficiency of the
evidence to support a gang enhancement, we might be compelled to reverse
because of the absence of evidence that the commission of the offenses was gang
related. The jury, as pointed out above,
however, was shrewd enough to distinguish between a gang enhancement and the
substantive offense of actively participating in
a criminal street gang.
Conspicuously missing from the elements of the substantive offense is
evidence the offense is gang related.
“Contrary to what is required for an enhancement under
section 186.22[, subdivision] (b), section 186.22[, subdivision] (a)
does not require that the crime be for the benefit of the gang. Rather, it ‘punishes active gang
participation where the defendant promotes or assists in felonious conduct by
the gang. It is a substantive offense
whose gravamen is the participation in
the gang itself.’ [Citation.]” (People
v. Martinez (2008) 158 Cal.App.4th 1324, 1334.) Thus we must ascertain whether there is
substantial evidence to support the three elements of the offense.
First, the
prosecution must prove defendants actively participated in a criminal street gang. There was ample evidence both defendants were
active participants in the Norteños,
a criminal street gang. They both had
admitted membership, both had numerous gang-related tattoos, both had been
arrested, both had committed crimes in the company of Norteño gang members, and both had
been contacted with other Norteño
gang members while wearing gang colors.
Second, the
prosecution must prove defendants had knowledge that the gang’s members engaged
in a pattern of criminal gang activity.
There is substantial evidence to support the jury’s finding defendants
knew the Norteño gang’s
members engage in or have engaged in a pattern of criminal activity. The gang expert testified to a number of
predicate offenses committed by Norteños,
including two that were committed by Ouellette and Sanudo themselves. Many, if not all, of the predicate offenses
occurred during their tenure in the gang.
Moreover, the gang expert also testified that defendants committed
crimes with other gang members; they were often contacted in the presence of
other Norteños;
Ouellette had numerous gang member contacts in his telephone address book, and
Sanudo possessed a letter that outlined the history, guidelines, and
commandments of the Norteños.
And third, the
prosecution must prove that defendants willfully assisted, furthered, or
promoted felonious criminal conduct by members of the gang, either by directly
committing a felony or by aiding and abetting the commission of a felony. This is the key element that distinguishes
the substantive offense from a gang enhancement. “The plain language of the statute thus
targets felonious criminal conduct, not felonious gang-related conduct.” (Albillar,
supra, 51 Cal.4th at p. 55.) And the Supreme Court was emphatic: “[T]here is nothing absurd in targeting the
scourge of gang members committing any crimes
together and not merely those that are gang related.” (Ibid.)
Thus, defendants’
arguments on appeal completely miss the mark.
There is substantial evidence that Ouellette, a Norteño, engaged in a fight with
Roberts and that Sanudo, another Norteño,
assisted him. The jury found them both
guilty of robbery and murder, either as a direct perpetrator or as an aider and
abettor. There was testimony at trial
that they both kicked Roberts as he lay in the street, and either one or both
of them rummaged through his pockets.
This evidence is sufficient to support the jury finding that Ouellette
and Sanudo, gang members, acted with the specific intent to promote, further,
or assist each other in that criminal conduct.
The challenge to the sufficiency of the evidence fails.
B. Sanudo’s Conviction for Robbery
On appeal, Sanudo
makes a very plausible closing argument to the jury that he could not have
robbed Roberts because he did not know a robbery was occurring. In his selective retelling of the evidence,
he came upon the scene as the scuffle had already begun, and he interceded
merely to help defend his friend. He
contends there is insufficient evidence his intent to steal was formed before
or during the act of force, a necessary prerequisite to a robbery
conviction. (People v. Marshall (1997) 15 Cal.4th 1, 34.)
The testimony of
two eyewitnesses, Clark and Hill, is essential to our assessment of the
sufficiency of the evidence. But first
we must dismiss two arguments Sanudo makes repeatedly and heatedly, accentuated
as they are by capitalization and rhetorical questions. He attacks the credibility of the
witnesses. Two competent defense
attorneys subjected the witnesses to grueling cross-examination, and all of the
weaknesses in their testimony were exposed to the jury at trial. The jurors, and not the justices of the Court
of Appeal, are the triers of fact charged with the responsibility to assess
credibility. On appeal, we must presume
the jury found their testimony credible.
Secondly, the
prosecutor’s argument is not evidence.
We reject Sanudo’s emphatic insistence that we consider the prosecutor’s
argument in our evaluation of the sufficiency of the evidence.
Instead, we must
review Clark’s and Hill’s testimony in the light most favorable to the
verdict. Clark testified she saw two men
bent over the man on the ground and at one point saw two men kicking the
man. She could see punches and arms
“flailing.” She next saw the suspects
rifling through the victim’s pockets.
The jury heard, too, that Clark had been drinking, it was dark, and she
could not be sure of what she had seen.
Hill provided more
details. She testified she saw an
African-American male on his bicycle and two gentlemen walking up to him. She heard them call him a “nigger” and kept
repeatedly asking, “What do you got for us” and “Give us what you got for us,
nigger.” She insisted she heard them
both talking; she could hear two different voices. Then she described what she saw: “One of the gentlemen pushed him off the bike
and as he hit the ground, the other gentleman started taking the bottom of the
foot, his foot, and kicking his face into the curb. And the other gentleman who pushed him off
the bike started kicking him in the ribs and going through his back pockets and
his front pockets and stuffing items into his own pockets.” She saw them both kicking him at different
times. But she clearly stated that
Ouellette (the driver) was the one who went through the victim’s pockets while
Sanudo (the passenger) stood one and a half feet away. Then Sanudo resumed kicking the victim as
Ouellette “was stuffing things into his pocket.”
Again, Hill’s
testimony was not without its weaknesses.
She, too, had been drinking. She,
too, gave different versions at different times. And her testimony conflicted with Ouellette’s
account that Sanudo did not arrive on the scene until after the scuffle had
begun.
Nevertheless, Hill
and Clark both placed Sanudo at the scene of the robbery, playing an integral
role in facilitating the taking of the victim’s property by kicking him on the
ground before and after his friend and fellow gang member rifled through the
victim’s pockets and stuffed the property into his own pockets. Sanudo insists there is no evidence he knew
Ouellette would rob the man after they kicked him in the head and rib
cage. But that is only one inference to
be drawn from the testimony.
It was the jury’s
prerogative to believe Hill’s account that both defendants called the victim a
“nigger” and taunted him with the refrain, “What do you got for us.” Even if Sanudo did not say the words, the
jury may have inferred that he heard Ouellette as he approached. And these exclamations certainly evidenced an
intent to rob. Moreover, the jury was
well acquainted with the custom and practices of Norteños, who robbed, beat, shot, and killed with some
regularity. Thus, it was hardly a
stretch for the jury to infer that Sanudo would support a fellow gang member in
perpetrating the robbery of a defenseless man who, after they kicked him
mercilessly, lay bludgeoned in the alley.
The inference was bolstered by Hill’s testimony that Sanudo stood in
close proximity to the victim as Ouellette went through his pockets and put the
property in his own pocket, supporting the prosecution’s theory that Sanudo
aided and abetted the robbery.
Because “[a]
reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility” (People v. Lindberg
(2008) 45 Cal.4th 1, 27), we are not at liberty to find the evidence
insufficient “simply because the circumstances might also reasonably be
reconciled with a contrary finding” (Albillar,
supra, 51 Cal.4th at p. 60). The evidence, if not overwhelming, is
substantial. There is sufficient
evidence to support the jury’s finding that Sanudo intended to rob the victim
either before or contemporaneously with the exertion of force and fear. Reversal is not warranted.
C. Special Circumstance Murder
Allegation
Sanudo repeats the
same fundamental errors in attacking
the sufficiency of the evidence to support the jury’s finding that the murder
was committed in the course of a robbery.
(§ 190.2, subd. (a)(17)(A).) He
ignores the deferential scope of appellate review and asks us to reweigh the
evidence and reassess the credibility of the witnesses. He simply reargues his version of the facts,
discounting or ignoring the substantial evidence against him.
Contrary to
Sanudo’s arguments on appeal, the prosecution did not have to prove that he
planned to rob and kill victim Roberts before the events of the early morning
hours of September 29 unfolded. It may
be that the robbery and murder were crimes of opportunity and that neither
Ouellette nor Sanudo premeditated the attack and robbery. The prosecution’s burden to prove the special
circumstance was far different. “In
order to support a finding of special circumstances murder, based on murder
committed in the course of a robbery, against an aider and abettor who is not
the actual killer, the prosecution must show that the aider and abettor had the
intent to kill or acted with reckless indifference to human life while acting
as a major participant in the underlying felony.” (People
v. Proby (1998) 60 Cal.App.4th 922, 927.)
It is undisputed
that Ouellette was the driver of the truck.
As a result, the jury convicted Sanudo of murder as an aider and
abettor. The question is whether there
is substantial evidence that he was a major participant in aiding and abetting
the murder-robbery and that he acted with reckless indifference to human
life. “[R]eckless indifference to human
life” is a “subjective appreciation, or knowledge, by the defendant” (
21, 2009, No. CIV S-03-1410 GEB EFB P) 2009 U.S. Dist. LEXIS 118255 at p. *19,
quoting Tison v. Arizona (1987)
481 U.S. 137, 152, 157-158 [95 L.Ed.2d 127]) “of the grave risk to human life
created by his or her participation in the underlying felony” (
578).
It can hardly be
said that Sanudo played a trivial role in the brutal attack on the
cyclist. He and Ouellette simultaneously
and repeatedly kicked the man until he was unconscious and unable to defend
himself. Sanudo’s representation that he
kicked the victim once or twice seriously misrepresents the record. His argument that a reasonable person would
never suspect that a couple of kicks would lead to death is a hypothetical
totally divorced from the reality of the evidence before us. There is ample evidence, therefore, that he
was a major participant.
Moreover, the
Attorney General does a remarkably thorough and lucid job of marshalling the
evidence in support of the jury’s finding that Sanudo subjectively appreciated
the grave risk to Roberts’s life by his own participation in the robbery and
murder. We extract the summary aptly
provided by the Attorney General.
“Sanudo was aware that the pickup he was getting into had to reverse out
of the parking space and into the alleyway.
Sanudo knew Roberts’ body was in the alley not far from the pickup. The jury could have reasonably found Sanudo
became subjectively aware of a grave risk to human life once Roberts was kicked
unconscious and left in the alleyway where Ouellette had to reverse his pickup
into in order to leave the scene of the robbery. [¶] If
not then, when Ouellette first ran over Roberts and Sanudo looked out the
passenger window and saw Roberts under the pickup. [Citation.]
If not then, when Sanudo opened the passenger door and kicked Roberts in
an attempt to dislodge Roberts from the vehicle. [Citation.]
If not then, when Sanudo got out of the pickup, looked under the pickup,
and got back in the pickup before Ouellette accelerated down the alleyway.”
In
914, the court held that the jury justifiably concluded a mere lookout acted
with reckless indifference by simply failing to aid the victim or summon
help. (Id. at pp. 927-928.)
Sanudo’s subjective awareness and personal participation far surpassed
the lookout’s passive failure to respond.
Because Sanudo was aware the man was on the ground behind the truck, saw
him lodged under the tire, and nevertheless did nothing to intercede on his
behalf, the evidence is more than sufficient under Smith to uphold the jury’s finding.
The precise moment of death does not determine Sanudo’s state of mind.
III
Lastly, Sanudo
attempts to incorporate the argument he made in a habeas corpus petition that
his sentence is cruel and unusual. He
argues that the facts and the law are obvious and no further elaboration on the
facts or law is necessary. Common sense,
he insists, must prevail. He urges us to
reject the Attorney General’s position that the issue is not properly before
us.
We must adhere to
established principles of appellate review.
Sanudo continues to twist the facts to fit his storyline “that he had no
intent to rob the victim and no idea what was going on.” He was, in his words, “just helping his
friend out of the scuffle.” As we have
pointed out in responding to the last two arguments, the jury rejected Sanudo’s
version of what happened. Whether a
sentence is disproportionate is measured against the jury’s findings of guilt,
not a defendant’s revisionist remake.
Given, as we have
recounted above, that Sanudo aided and abetted a robbery and murder by kicking
the victim, leaving him lying in the alley, jumping into a truck and watching
the driver back over the body, looking under the truck and kicking the victim
some more, jumping out of the truck and seeing the victim lodged under the
tire, and then fleeing the scene, we conclude the sentence is neither cruel nor
unusual and does not offend our constitutional sensibilities.
DISPOSITION
The judgments are
affirmed.
RAYE , P. J.
We concur:
DUARTE , J.
HOCH , J.
[1] All further statutory references are to the
Penal Code unless otherwise indicated.
