P. v. Quintana
Filed 12/13/13 P. v. Quintana CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS BERNARDO QUINTANA,
Defendant and Appellant.
B241783
(Los Angeles
County
Super. Ct.
No. BA 364009)
APPEAL from
a judgment of the Superior Court
of Los Angeles
County, William C. Ryan, Judge. Affirmed with directions.
Slyvia
Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C.
Johnson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *
Along with
two codefendants, appellant Luis Bernardo Quintana was charged with one count
of murder after Julio Cesar Olivares was
fatally shot while standing on the porch outside his house. Although appellant was present at the
shooting, there was no evidence he was the shooter, so the prosecutor tried the
case on the theories he was liable either as an aider and abettor to Olivares’s
murder or engaged in a conspiracy to assault Olivares, the natural and probable
consequence of which was Olivares’s murder.
A jury found appellant guilty of the lesser included offense of voluntary manslaughter and found true an
allegation that a principal was armed with a firearm.
Appellant challenges
his conviction on several grounds: (1)
the trial court erred in instructing the jury on aider and abettor liability;
(2) the trial court should have instructed sua sponte on the lesser included
offense of involuntary manslaughter; and (3) the trial court erred in allowing
an amendment to the information after the jury reached its verdict and had been
discharged. We reject these contentions
and affirm appellant’s conviction. There
are, however, clerical errors in the verdict form, minutes of the sentencing hearing, and abstract of
judgment, so we will direct the trial court to correct them.
In an information filed July 27, 2010, appellant and codefendant
Jose Quintana (Jose) were charged with one count of murder. (Pen. Code, § 187, subd. (a).)[1] It was alleged appellant personally used a
firearm (§ 12022.53, subd. (b)), personally and intentionally used a
firearm in the commission of the offense (§ 12022.53, subd. (c)), personally
and intentionally used a firearm causing great bodily injury and death (§ 12022.53,
subd. (d)), and a principal was armed with a firearm (§ 12022, subd.
(a)(1)). It was further alleged
appellant had suffered a prior “strike” conviction. (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d).) At some point, a third codefendant
Jessie Delgado was added.
The three
codefendants were tried together before a jury.
On the first day of trial, the court bifurcated the trial on appellant’s
prior strike conviction and appellant waived his right to a jury trial on it. After trial, the jury acquitted Delgado and convicted
appellant and Jose of the lesser included offense of voluntary
manslaughter. (§ 192, subd. (a).) The jury found true the allegation that a
principal was armed with a firearm as provided in section 12022, subdivision
(a), although appellant’s verdict form contains a clerical error, incorrectly
citing section 12022.5, subdivision (a).
Only appellant’s conviction is at issue in this appeal.
After the
jury had been discharged, but before appellant was sentenced, the prosecution sought
to amend the information to allege appellant’s prior strike conviction was also
a serious felony pursuant to section 667, subdivision (a)(1). Over appellant’s objection, the trial court
granted the request.
At the
sentencing hearing two months later, appellant admitted and the court found
true the allegation he had suffered the prior conviction as both a serious
felony (§ 667, subd. (a)(1)) and a strike (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)). Appellant was sentenced
to 18 years in prison. Although the minutes
from the sentencing hearing and the abstract of judgment contain clerical
errors (discussed post), appellant
was sentenced as follows: the midterm of
six years for the voluntary manslaughter conviction, doubled to 12 years
because of the prior strike; one year for the principal with a firearm
allegation; and five years under section 667, subdivision (a)(1) for the prior
serious felony. The court also imposed
various fines, fees, and custody credits not at issue here. Appellant timely appealed.
Silvia Lilly
Melara lived with her husband, victim Julio Cesar Olivares, in Los Angeles.[2] The first time Melara saw appellant was in
May 2009 when Melara and Olivares were in their truck by a fish market on the
corner of 85th Street and Central Avenue.
As they were about to make a left turn, Melara saw appellant walking
toward their truck. He looked at
Olivares in an angry way, like a “mad dog.”
Appellant and Olivares began to argue and appellant told him, “I’ll
light you up, motherfucker.” Melara
yelled at Olivares not to fight, and they drove off.
Around 5:30
p.m. on July 9, 2009, the day of the shooting, Melara heard yelling outside her
home. She looked out and saw appellant,
codefendant Jose, and an unidentified African-American man standing on the
sidewalk by her yard. The men shouted
Oliveras’s name. Jose asked Melara where
was the “guy that drives a white truck”
Melara said the truck belonged to her and Olivares was not home. Appellant said, “Tell him to come out. Tell him to come outside.” Appellant and Jose appeared angry and
appellant said Olivares had crashed into their car. Melara told them again Olivares was not home,
so the men told her they would be back in 15 minutes and drove off in a black
truck. Oliveras arrived home five
minutes later. Melara told him the men
were looking for him and they would return in 15 minutes. Melara then left.
Eduardo
Canela was Olivares’s next-door neighbor, and on the day of the shooting, he
was working on his truck in his front yard.
He saw a black Tahoe or Yukon vehicle pass by three times, recognizing
appellant as the driver. At one point
appellant stopped while looking at Canela’s house and asked Canela if the
person with the white truck lived there, meaning Olivares. Appellant appeared upset. Canela told appellant no, he lived there with
his wife and children. Appellant left
and stopped to talk with individuals in a Camaro “[s]ome feet ahead” of
Canela’s house.
About 30
minutes later, a brown Suburban vehicle arrived at Canela’s house and parked in
his driveway. Appellant, Jose, and an
unidentified African-American man exited the vehicle. Appellant and Jose approached Canela’s house
and knocked on the door several times.
Canela was sitting in his truck at the time and gestured to them as if
to say, “what are you looking for”
Appearing angry and upset, they came toward Canela. In Spanish,[3] appellant
warned him not to cover up for “him,” that is, Olivares. Jose warned Canela if he did, his house would
be burned down along with anyone else inside.
They tried to open the doors to Canela’s truck, and Canela became afraid
and drove away “rapidly.” He drove a few
blocks, parked, and called Olivares, asking who were the men looking for
him. After about 10 or 15 minutes,
Canela returned home, went inside, and locked his doors.
A few
minutes later, Canela heard arguing coming from Olivares’s house. When he looked out his front door, he saw
appellant, Jose, and two other people standing by the closed gate outside
Olivares’s house near the same Suburban from earlier. Two other people were in the car. Olivares stood a few feet away from appellant
and Jose, separated by the gate.
Although Canela did not understand English well, he heard Jose yell in
English, “Leave my brother alone” and “I’m from Watts. This is my hood.” After a few seconds, Canela quickly walked
out his back door and over to Olivares’s house to get a better view of what was
happening. When he entered Olivares’s
back door to the kitchen, he heard several gunshots and crouched down. When the firing stopped, he went to the front
door and found Olivares lying in the threshold, bleeding from gunshot wounds. Canela pulled him into the house.
At the same
time, Olivares’s cousin Toribio Olivares (Toribio) pulled up to Olivares’s
house. He heard two or three gunshots,
so he ducked down and stopped his car. When
Toribio raised his head, he saw the brown Suburban parked in front of
Olivares’s house. He saw appellant and
Jose on the sidewalk facing the house.
He also saw the door of the Suburban was open halfway and a passenger,
Delgado, fire four or five shots out of the window toward the front door of
Olivares’s house. He saw another person
in the driver’s seat, but he could not see the person clearly. After the shooting, appellant and Jose ran
from the scene in different directions and the Suburban drove away. Toribio ran into Olivares’s house and helped
Canela pull Olivares inside. Canela had
called 911 by that time and handed Toribio the phone so he could speak to the
operator in English.
Two Los
Angeles police officers investigated the scene of the shooting. Because Olivares was expected to live at the
time, the scene was investigated as an assault with a deadly weapon. Officers searched the surrounding residences
for witnesses. They also interviewed
Melara, Canela, and Toribio at the scene.
A search uncovered two spent nine-millimeter shell casings on the
sidewalk outside the gate to Oliveras’s house, one spent nine-millimeter shell
casing at the gate, and a bullet fragment on Olivares’s front porch. A police department criminalist concluded the
casings came from two different firearms.
No weapons or spent shell casings were found in the house or on the
front porch.
Los Angeles
Police Officer Gorgonio Medina interviewed witnesses as part of the ongoing
investigation. Based on information
gleaned from those interviews, he prepared a photographic six-pack lineup and
showed it to the eyewitnesses, all of whom identified appellant and Jose. Officer Medina also located the black Yukon
that had driven by Canela’s house several times, which was registered to
appellant. Officer Medina eventually
arrested appellant and Jose and recovered keys from Jose belonging to a GMC
vehicle, which turned out to be the Suburban from the incident. When Officer Medina asked Jose what the keys
were for, Jose responded, “What the fuck
That’s the car that you’ve been looking for, my truck. Let’s get it over with.” Officers located and impounded the
Suburban. When they analyzed it, they
located two bullet dents or impacts, but it was impossible to tell whether they
happened during the incident or at some other time. There was also no way to determine whether
the shots came from the direction of Olivares’s house, although that could not
be excluded as a possibility.
In January
2010, Olivares died from complications from his gunshot wounds. Prior to his death, he gave a conditional
interview at the hospital, which was recorded and played for the jury.
None of the codefendants
testified.
College
student Veronica Cortes lived across the street and three houses down from
Olivares. Around dinner time the day of
the shooting, Cortes was sitting in her living room when she heard
gunshots. She ran to her bedroom and
looked out the window. She saw someone
come from the right side of the Suburban, which was parked in the middle of the
street, and run to the back of the vehicle and grab the luggage rack as the
Suburban pulled away. She initially testified
she did not see shots fired from the direction of the Suburban. However, on cross-examination she admitted she
had seen the front passenger shoot at the house, and then she claimed not to
remember one way or the other. She also
stated the passenger was holding a black nine-millimeter firearm.
She also
testified she saw an individual on the porch of Olivares’s house shoot toward
the Suburban and run into the house, and that she had told Officer Medina
during an interview there was a man on the porch wearing a white shirt shooting
at the Suburban. She testified on
cross-examination, however, she did not actually see anyone; she merely heard
gunshots from that direction.
She saw
four or five men leave the left side of the house and run away. She did not see anyone on the sidewalk. She saw one person exit the gate in front of
Olivares’s house and run northbound on Wadsworth Avenue. The person was not carrying any objects in
his hands.
Cortes
never contacted law enforcement about what she had seen. The defense learned she had witnessed the
shooting because she had told her brother-in-law, who was friends with
appellant. She recalled appellant had
been over to her house two times in the past, but did not recall seeing him the
day of the shooting.
On July 13,
2009, Detective Teresa Hernandez was working phone duty at the 77th Police
Division when a woman called identifying herself as Oliveras’s wife. She stated two male Hispanics had come to her
house looking for Olivares, one of whom she had seen previously on the corner
of Central Avenue and 85th Street. The
woman did not tell her the man told her husband, “I’m going to light you up, motherfucker.”
Liability
At trial,
the prosecutor argued and the trial court instructed the jury on two theories
of liability for appellant related to Olivares’s death: aider and abettor liability and conspiracy. For the aider and abettor theory, the court instructed
the jury with CALCRIM No. 400: “A person
may be guilty of a crime in two ways.
One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime.
[¶] A person is guilty of a crime
whether he or she committed it personally or aided and abetted the
perpetrator. [¶] Under some specific circumstances, if the
evidence establishes aiding and abetting of one crime, a person may also be
found guilty of other crimes that occurred during the commission of the first
crime.”
The court
also read CALCRIM No. 401, which sets forth the requirements for aiding and
abetting liability for the target crime, which in this case was murder: “To prove that the defendant is guilty of a
crime based on aiding and abetting that crime, the People must prove that: [¶] 1.
The perpetrator committed the crime;
[¶] 2. The defendant knew that
the perpetrator intended to commit the crime;
[¶] 3. Before or during the
commission of the crime, the defendant intended to aid and abet the perpetrator
in committing the crime; [¶] AND
[¶] 4. The defendant’s words or
conduct did in fact aid and abet the perpetrator’s commission of the
crime. [¶] Someone aids and abets a crime if he or she
knows of the perpetrator’s unlawful purpose and he or she specifically intends
to, and does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.
[¶] If all these requirements are
proved, the defendant does not need to actually have been present when the
crime was committed to be guilty as an aider and abettor. [¶] If
you conclude that defendant was present at the scene of the crime or failed to
prevent the crime, you may consider that fact in determining whether the
defendant was an aider and abettor.
However, the fact that a person is present at the scene of a crime or
fails to prevent the crime does not, by itself, make him or her an aider and
abettor. [¶] The People have the burden of proving beyond
a reasonable doubt that the defendant aided and abetted. If the People have not met this burden, you
may not find the defendant guilty under an aiding and abetting theory.”
For
conspiracy, the court instructed the jury with CALCRIM No. 416, which set forth
the requirements of proving an uncharged conspiracy to commit assault on
Olivares; CALCRIM No. 915, which explained the elements of simple assault; and
CALCRIM No. 417, which explained liability for coconspirators’ acts, including
the natural and probable consequences of the acts.
The court
instructed on the elements of first and second degree murder, provocation, self-defense,
and the lesser included offenses of voluntary manslaughter based on heat of
passion and imperfect self-defense.
Appellant
argues the trial court violated his due process and fair trial rights by not
sua sponte amending CALCRIM No. 400 to also instruct the jury that an aider and
abettor could be guilty of a lesser crime than the perpetrator or that each
aider and abettor could be guilty of a lesser crime than the others. The Attorney General argues this argument was
forfeited by the failure to object to the instruction in the trial court, and
even if not forfeited, the argument fails on the merits and appellant suffered
no prejudice from any possible error. We
agree on all points.
“‘“[A]
party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.”’” (People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego) [finding challenge to prior version of CALCRIM No. 400
forfeited for failing to raise it below]; see People v. Mejia (2012) 211 Cal.App.4th 586, 624 (
People v. Loza (2012) 207 Cal.App.4th
332, 350 (Loza); People v. Lopez (2011) 198 Cal.App.4th 1106, 1118-1119 (
legally correct, so appellant has forfeited his argument that it was incomplete
and misleading by not raising the contention below.
Notwithstanding
forfeiture, appellant’s claim fails on the merits. “All persons concerned in the commission of a
crime, . . . whether they directly commit the act constituting
the offense, or aid and abet in its commission, . . . are
principals in any crime so committed.”
(§ 31.) In
abettor may be found guilty of a greater homicide-related offense than the
actual perpetrator: “[W]hen a person,
with the mental state necessary for an aider and abettor, helps or induces
another to kill, that person’s guilt is determined by the combined acts of all
the participants as well as that person’s own mens rea. If [the aider and abettor’s] mens rea is more
culpable than another’s, that person’s guilt may be greater even if the other
might be deemed the actual perpetrator.”
(Id. at p. 1122.)
Courts have
relied on McCoy to reason an aider
and abettor can be convicted of a lesser homicide-related
offense than the actual perpetrator. (
see also Mejia, supra, 211
Cal.App.4th at p. 624; Loza, supra,
207 Cal.App.4th at pp. 351-352; People
v. Nero (2010) 181 Cal.App.4th 504, 514.)
In Samaniego, the jury was
instructed with a previous version of CALCRIM No. 400, which read in pertinent
part, “‘A person is equally guilty of
the crime whether he or she committed it personally or aided and abetted the
perpetrator who committed it.’” (
“equally guilty” to be misleading under the circumstances (but ultimately
harmless) because the reasoning in McCoy
“leads inexorably to the further conclusion that an aider and abettor’s guilt
may also be less than the perpetrator’s, if the aider and abettor has a less
culpable mental state.” (
[reaching same conclusion for similar CALJIC No. 3.00, but finding error
prejudicial].) In short, “the extent of
an aider and abettor’s liability is dependent upon his particular mental state,
which may, under the specific facts of any given case, be the same as, or
greater or lesser than, that of the direct perpetrator.” (Mejia,
supra, at p. 624.)
CALCRIM No.
400 was revised in 2010 to eliminate the word “equally” (Lopez, supra, 198 Cal.App.4th at p. 1119, fn. 5;
fn. 14), and the instruction in this case omitted it.[4] Appellant argues even this version of CALCRIM
No. 400 directed the jury to find him equally guilty with the shooter[5] because
the instruction did not also state that appellant could be convicted of a
lesser offense than the perpetrators. However,
as given to the jury, CALCRIM No. 400 correctly stated the general legal
requirements for aiding and abetting liability, including that a “person is
guilty of a crime whether he or she committed it personally or aided and
abetted the perpetrator.” CALCRIM No.
401 further instructed that the jury may find aider and abettor liability only
when the aider and abettor “knows of the perpetrator’s unlawful purpose and he or
she specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.” And the trial court instructed the jury on
the requirements of first and second degree murder and voluntary manslaughter.
We must
consider the instructions as a whole, which the jury is presumed to follow, and
must determine whether “there was a reasonable likelihood the jury applied the
challenged instruction in an impermissible manner.” (People
v. Wilson (2008) 44 Cal.4th 758, 803.)
Nothing in these instructions created a reasonable likelihood the jury believed
appellant had to be found “equally” guilty as the perpetrator as an aider and
abettor.
Appellant
further argues that CALCRIM No. 400 “allowed appellant to be found guilty of voluntary manslaughter based on his
confederates’ act of shooting at Olivares, and the jury was not required to
make a finding that appellant intended more than to aid and abet the original
assault.” Further, with regard to the
“natural and probable consequences doctrine, a juror in this case may have
reasoned that appellant intended to aid and abet Jose Quintana and Jessie
Delgado in the crime of committing an assault upon Julio Olivares and, given
the circumstances, a reasonable person in appellant’s position could have
foreseen that the situation might escalate to the point where someone might
kill Olivares.”
These
arguments conflate the prosecution’s theories of liability in this case. As explained in McCoy, there are two kinds of aider and abettor liability. “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.’”
(McCoy, supra, 25 Cal.4th at
p. 1117.) The same is true for the
theory of conspiracy. (
248, 261 (Prettyman);
Cal.App.4th 731, 739 (Zielesch).) Here, the jury was not instructed that
appellant would be liable as an aider and abettor for the natural and probable
consequences of an intended assault on Olivares. (See, e.g., CALCRIM Nos. 402 and 403, which
were not read to the jury.)[6] The jury was instructed only as to aider and
abettor liability for the intended crime of murder, which was set forth in
CALCRIM No. 401. The jury was instructed
on the natural and probable consequences of an intended assault on Olivares as
part of the conspiracy instructions,
namely CALCRIM No. 417, which appellant has not challenged. Thus, appellant’s argument that the jury must
have convicted him of aiding and abetting
an assault on Olivares that led to Olivares’s death as a natural and probable
consequence is incorrect.[7]
Finally,
appellant argues the jury could not have found him guilty of voluntary
manslaughter under any theory, so it must have equated his guilt with that of
the perpetrator without separately assessing his intent for aider and abetting
liability, as required by McCoy. (McCoy,
supra, 25 Cal.4th at p. 1121.) A
defendant is guilty of voluntary manslaughter “‘when the defendant acts in a “sudden
quarrel or heat of passion” [citation], or when the defendant kills in
“unreasonable self-defense” ‑‑ the unreasonable but good faith
belief in having to act in self-defense [citations].’ [Citation.]”
(People v. Blakeley (2000) 23
Cal.4th 82, 87-88; see also CALCRIM Nos. 570 & 571.) The jury was instructed on both theories.
Appellant
correctly notes there was no evidence he was a shooter, so the jury could not
have convicted him on the theory that he was directly responsible for
Olivares’s death. Appellant claims the
jury could not have convicted him for aiding and abetting voluntary
manslaughter because at the moment of the shooting he simply ran away from the
scene, implying the shooter formed the intent to kill Olivares at that moment
while under the heat of passion or in imperfect self-defense, and appellant did
nothing to aid and abet the shooter after that point. Appellant also contends the jury could not
have relied on a conspiracy theory because voluntary manslaughter based on heat
of passion or imperfect self-defense cannot be planned as part of a conspiracy.
Appellant once
again misunderstands the prosecution’s theories of liability. Even if appellant is correct the jury could
not have found him guilty of aiding and abetting voluntary manslaughter, the
prosecutor argued and the trial court instructed the jury that if it found a
conspiracy to assault Olivares, it could convict appellant of murder or
manslaughter as a natural and probable consequence of that assault. The evidence overwhelmingly satisfied that
theory. As a result, not only is appellant’s
argument incorrect that the jury could not have found him guilty of voluntary
manslaughter under any theory, but for this reason any errors in the aiding and
abetting instructions were harmless beyond a reasonable doubt. (Samaniego,
supra, 172 Cal.App.4th at p. 1165 [applying Chapman v. California (1967) 386 U.S. 18, 24].)
In order to
find a conspiracy to commit assault, the jury was instructed pursuant to
CALCRIM No. 416 that it must find, among other elements, that appellant
intended to agree and did agree with another member of the conspiracy to
assault Olivares, intended he or another member of the conspiracy would in fact
assault Olivares, and undertook at least one of the following enumerated overt
acts in furtherance of the conspiracy:
drove around the block looking for Olivares; approached Canela asking
about Olivares and threatening Canela; approached Olivares’s home looking for
him; armed themselves; entered the Suburban; drove to Olivares’s house; exited
the vehicle; and confronted Olivares.
To convict appellant
of the nontarget crime of voluntary manslaughter, the jury was instructed pursuant
to CALCRIM No. 417 that “[a] member of a conspiracy is also criminally responsible
for any act of any member of the conspiracy if that act is done to further the
conspiracy and that act is a natural and probable consequence of the common
plan or design of the conspiracy.” A
natural and probable consequence was defined for the jury as “one that a
reasonable person would know is likely to happen if nothing unusual
intervenes. In deciding whether a
consequence is natural and probable, consider all of the circumstances
established by the evidence.” The jury
was therefore required to find “1. The
defendant conspired to commit one of the following crimes: an assault on Julio Cesar Olivares; [¶]
2. A member of the conspiracy
committed murder or manslaughter to further the conspiracy; [¶]
AND [¶] 3. The
murder or manslaughter was a natural and probable consequence[] of the common
plan or design of the crime that the defendant conspired to commit.”
The
evidence demonstrated that approximately two months before the shooting,
appellant and Olivares had a confrontation, during which appellant looked angry
and threatened Olivares, “I’ll light you up, motherfucker.” On the day of the shooting, appellant, Jose,
and a third man showed up outside Olivares’s house, asking for Olivares and
appearing angry. Olivares’s neighbor
Canela saw appellant drive by several times, and eventually appellant stopped
and asked Canela if Olivares lived at his house, again appearing upset. Later, appellant, Jose, and a third man
returned to Canela’s house, still angry and upset, and Jose threatened Canela
not to cover up for Olivares or he would burn down his house and everyone
inside. Appellant then showed up at
Olivares’s house with five other men, at least one (and potentially two) of
whom were armed. He, Jose, and two men
argued with Olivares, and then someone opened fire and shot Olivares, which
eventually killed him. Appellant fled
from the scene.
This
evidence supported the jury’s finding of a conspiracy to commit assault on
Olivares and that a reasonable person in appellant’s position would have known
his coconspirators would shoot Olivares during the confrontation. (Zielesch,
supra, 179 Cal.App.4th at p. 739 [“The question whether an unplanned
crime is a natural and probable consequence of a conspiracy to commit the
intended crime ‘is not whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, [the unplanned crime] was reasonably
foreseeable.’ [Citation.] To be reasonably foreseeable[,] ‘“‘[t]he
consequence need not have been a strong probability; a possible consequence
which might reasonably have been contemplated is enough . . . .’
[Citation.]”’ [Citation.]”].)
Further, to
support a voluntary manslaughter conviction, there was evidence Olivares shot
at appellant and his coconspirators, provoking them to shoot back intending to
kill or with conscious disregard for life, but either out of a heat of passion
or in imperfect self-defense, which would negate the malice required for murder. (People
v. Bryant (2013) 56 Cal.4th 959, 968 (Bryant)
[like murder, voluntary manslaughter requires either an intent to kill or
conscious disregard for life, but with the element of malice negated by
provocation or unreasonable self-defense]; People
v. Rios (2000) 23 Cal.4th 450, 460-461.)
The jury was entitled to credit this evidence and find the prosecution failed
to carry its burden to prove a lack
of heat of passion or imperfect self-defense beyond a reasonable doubt. (Rios,
supra, at p. 462 [“If the issue of provocation or imperfect
self-defense is thus ‘properly presented’ in a murder case [citation], the
element of malice. [Citations.] . . . [Citation.]
In such cases, if the fact finder determines the killing was intentional
and unlawful, but is not persuaded beyond reasonable doubt that provocation (or
imperfect self-defense) was absent, it should acquit the defendant of murder
and convict him of voluntary manslaughter.
[Citations.]”].)[8]
The jury was
therefore justified in convicting appellant of voluntary manslaughter as a
natural and probable consequence of the conspiracy to commit an intended
assault on Olivares, so any error in the aiding and abetting instructions was
harmless beyond a reasonable doubt.
Instruction
Appellant
argues the trial court violated his due process and fair trial rights by not
instructing sua sponte on involuntary manslaughter, which is a lesser included
offense to murder. (Prettyman, supra, 14 Cal.4th at p. 274.) “A trial court must instruct the jury on a
lesser included offense, whether or not the defendant so requests, whenever
evidence that the defendant is guilty of only the lesser offense is substantial
enough to merit consideration by the jury.”
(People v. Halvorsen (2007) 42
Cal.4th 379, 414, fn. omitted.)
“Substantial evidence in this context is that which a reasonable jury
could find persuasive.” (
We need not
decide whether the trial court erred because appellant suffered no
prejudice. “[I]n a noncapital case,
error in failing sua sponte to instruct, or to instruct fully, on all lesser
included offenses and theories thereof which are supported by the evidence must
be reviewed for prejudice exclusively under [People v.] Watson [(1956)
46 Cal.2d 818, 836]. A conviction of the
charged offense may be reversed in consequence of this form of error only if,
‘after an examination of the entire cause, including the evidence’ (Cal. Const.,
art. VI, § 13), it appears ‘reasonably probable’ the defendant would have
obtained a more favorable outcome had the error not occurred [citation].” (Breverman,
supra, 19 Cal.4th at p. 178.)
As
discussed above, two months prior to the shooting, appellant confronted and
threatened Olivares, and on the day of the shooting, drove by Olivares’s house
multiple times and, with his coconspirators, confronted Olivares’s wife once
and Canela twice. During the second
encounter with Canela, appellant’s coconspirator Jose threatened to burn down
Canela’s house with everyone inside if he was covering up for Olivares. Appellant then showed up at Olivares’s house
with several others, some armed, and one or more of them shot multiple rounds
at Olivares, fatally wounding him. This
deliberate escalation of the conflict between appellant and his conspirators
with Olivares, culminating in the armed confrontation in front of his house
during which Olivares was fatally shot demonstrates at least voluntary
manslaughter. (People v. Woods (1992) 8 Cal.App.4th 1570, 1593 [“[T]he trial court
need not instruct on a particular necessarily included offense if the evidence
is such that the aider and abettor, if guilty at all, is guilty of something beyond
that lesser offense, i.e., if the evidence establishes that a greater offense
was a reasonably foreseeable consequence of the criminal act originally
contemplated, and no evidence suggests otherwise.”].) Under these facts, it was not reasonably probable
the jury would have convicted appellant of involuntary manslaughter if the
trial court had given that instruction, so any error in failing to do so was
harmless.
After the jury
reached its verdict and was discharged, the trial court allowed the prosecution
to amend the information to include an allegation that appellant’s prior strike
conviction also constituted a serious felony pursuant to section 667,
subdivision (a)(1). Appellant argues the
trial court erred in allowing this belated amendment. We disagree.
The
original information alleged appellant had suffered a prior conviction for violating
section 246, which constituted a prior strike conviction pursuant to section
667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through
(d). On the first day of trial,
appellant moved to bifurcate the trial of the prior strike from the trial of
the merits, which the trial court granted.
At that time, the trial court also took a waiver of appellant’s right to
have a jury determine whether the prior strike was true, explaining appellant
would otherwise be entitled to have the same jury that decided his guilt decide
the strike prior.[9] After the jury returned its guilty verdict
for appellant and his codefendant, it was discharged and the trial court
continued the matter a week for sentencing.
At the next
hearing, sentencing was again continued and the prosecutor for the first time
sought to amend the information to add an allegation that appellant’s prior
strike conviction also constituted a serious prior felony subject to a
five-year enhancement under section 667, subdivision (a)(1).[10] When asked, the prosecutor had no explanation
why it was not added previously.
Appellant objected to the amendment.
The trial court expressed reservations that it would have to impanel a
new jury, but the prosecutor noted the underlying conviction was the same as
that alleged for the prior strike and appellant had waived a jury as to that
conviction. The trial court noted the
trial on the prior strike had not yet occurred, so the court allowed the
amendment because “the People are entitled to amend anytime up to the verdict
on that allegation.” After continuing
the matter for two months, the court held the sentencing hearing, during which
the appellant admitted and the court found true his prior conviction.
Section
1025 provides in pertinent part:
“(b) Except as provided in
subdivision (c), the question of whether or not the defendant has suffered the
prior conviction shall be tried by the jury that tries the issue upon the plea
of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury
impaneled for that purpose, or by the court if a jury is waived. [¶]
(c) Notwithstanding the
provisions of subdivision (b), the question of whether the defendant is the
person who has suffered the prior conviction shall be tried by the court
without a jury.”[11] In short, section 1025 provides a limited
right to a jury trial on prior convictions, including a right to have the
conviction tried before the same jury that decided guilt. (People
v. Epps (2001) 25 Cal.4th 19, 23 (Epps);
People v. Tindall (2000) 24 Cal.4th
767, 771-772 (Tindall).)
Appellant
relies on Tindall to argue the trial
court’s allowance of the amendment after discharging the jury deprived him of
his right to have the same jury decide whether his prior conviction satisfied
section 667, subdivision (a). Before the
Supreme Court decided Tindall, it
decided People v. Valladoli (1996) 13
Cal.4th 590, which addressed whether section 969a[12]
permitted the prosecution to amend the information to add prior conviction
allegations after the jury has rendered its verdict but before it has been
discharged. (Valladoli, at p. 594.)
It answered affirmatively and set out a list of factors trial courts may
consider in determining whether to allow the amendment. (Id.
at pp. 607-608.) It expressly
declined to address the situation in which “the People attempted to amend the
information or indictment after the jury was discharged” and “express[ed] no
opinion on whether such amendments are permissible under other statutory provisions,” citing, inter alia, section 1025. (Valladoli,
at p. 608, fn. 4.)
section 1025 precludes the prosecutor from adding prior conviction allegations
to the information once the jury that decided guilt has been discharged. (Tindall,
supra, 24 Cal.4th at pp. 769-770; see also People v. Gutierrez (2001) 93 Cal.App.4th 15, 23-24.) Neither Valladoli
nor Tindall addressed the precise
scenario in this case, however, because neither case involved an amendment
alleging only the legal effect of a previously
alleged prior conviction. (
The right
to a jury trial on prior convictions embodied in section 1025 extends only to
having the jury “‘determine . . . whether [the defendant]
“suffered” the alleged prior conviction’” (Epps,
supra, 25 Cal.4th at p. 23, quoting
589 (Wiley)), not the legal effect of
that conviction, such as whether the prior conviction constituted a strike (
455-456) or whether the prior conviction is subject to the five-year
enhancement in section 667, subdivision (a) (People v. Williams (2002) 99 Cal.App.4th 696, 701). Here, appellant waived his right to a jury
trial on whether he suffered the prior conviction, albeit with the
understanding it would constitute a strike conviction, not that it would also
subject him to a five-year enhancement under section 667, subdivision (a). But because he had a right under section 1025
only to a jury deciding whether he suffered the prior conviction, not its legal
effect, and he waived that right, the trial court could not have violated
section 1025 in allowing the belated amendment pertaining only to the legal
effect of the prior conviction.
The
remaining question is whether the trial court abused its discretion in allowing
the belated amendment under section 969a in light of the factors set forth in
“(i) the reason for the late amendment, (ii) whether the defendant is surprised
by the belated attempt to amend, (iii) whether the prosecution’s initial
failure to allege the prior convictions affected the defendant’s decisions
during plea bargaining, if any, (iv) whether other prior felony convictions had
been charged originally, and (v) whether the jury has already been discharged
[citation].” (Valladoli, supra, 13 Cal.4th at pp. 607-608.)
The trial
court did not expressly weigh these factors, but our review of them supports
the trial court’s allowance of the amendment.
The first factor was at most neutral because, while the prosecutor
offered no explanation for the omission, there was nothing to suggest the
omission was intentional. (
of allowing the amendment. Appellant
could not have been taken entirely by surprise because his prior conviction had
already been alleged and the trial court took a waiver of his jury trial right
on that conviction before trial began. (
Moreover, the sentencing hearing was continued two months after the
court granted the request to amend, so appellant had plenty of time to research
and respond to the new allegations (although he ultimately admitted the prior
conviction). The third and fifth factors
are neutral because nothing in the record sheds light on the plea bargaining process and, as we
concluded ante, appellant did not
have the right to a jury trial on the amended allegation, so whether the jury
was discharged is immaterial. On
balance, the trial court did not abuse its discretion to allow the late
amendment.[13]
Both the
abstract of judgment and the sentencing minute
order reflect the jury found true the allegation that a principal was armed
with a firearm pursuant to section 12022, subdivision (a). However, the verdict form contains a clerical
error, incorrectly citing section 12022.5, subdivision (a) for the enhancement
the jury found true, although the form correctly described the allegation as “a
principal was armed with a firearm, specifically: a handgun . . . .” The Attorney General concedes the error and we
agree. The amended information charged,
the prosecutor argued, and the trial court instructed on the principal armed
with a firearm enhancement in section 12022, subdivision (a), not section
12022.5, subdivision (a), so the citation of that section in the verdict form
was unquestionably a clerical error. (
1269, 1273.) We therefore direct the
trial court to correct the verdict form to reflect the correct citation of
section 12022, subdivision (a).
Abstract of Judgment
Appellant was
sentenced to a total term of imprisonment of 18 years. In the transcript of the sentencing hearing,
the trial court sentenced appellant “to the mid-term of 12 years in state
prison for the allegations that a principal is armed pursuant to Penal Code
section 12022(a). I sentence an
additional consecutive term of one year for the fact that you were previously
convicted of a serious felony. I impose
an additional consecutive term of five years for a total aggregate term of 18
years in any state prison.” We presume
the court misspoke because the 12-year term must have been the midterm of six years
for voluntary manslaughter (§ 193, subd. (a)), doubled to 12 years in
light of the prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)); the
additional one year must have been for the principal firearm use allegation (§ 12022,
subd. (a)); and the additional five years must have been for the prior serious
felony (§ 667, subd. (a)(1)).[14] The parties agree with our interpretation.
With that
understanding, neither the minutes from the sentencing hearing nor the abstract
of judgment correctly transcribed appellant’s sentence. The minutes of appellant’s sentencing on May
23, 2012, indicate appellant would “[s]erve 18 years in any state
prison[.] [¶] Court selects the upper term of 12 years as to
the base term count 01. [¶] Plus 6 years pursuant to section see
comments[.]” This was incorrect because
the 12 years was not the upper term, but the midterm doubled for the prior
strike. In another part, the minutes repeat
this error: “As to count 1, a violation
of Penal Code section 192(a), defendant is to be imprisoned in any state prison
for a total aggregate term of 18 years.
The court selects the high term of 12 years as the base term as to this
count, plus an additional term of 1 year pursuant to Penal Code section
12022(a), plus an additional term of 5 years pursuant to Penal Code section
667(a).”
The
abstract of judgment repeated the incorrect statement that the court imposed
the upper term for count 1. The abstract
of judgment also did not reflect appellant’s sentence was a “two-strike” sentence
pursuant to section 667, subdivisions (b) through (i) or section 1170.12 by
checking the appropriate box under No. 4.
We must
order the trial court to correct clerical errors in the sentencing minutes and
abstract of judgment to conform with the oral pronouncement of judgment. (People
v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment];
380, 385 [sentencing minutes].) The
trial court is therefore directed to prepare amended minutes for the May 23, 2012
sentencing hearing to correct all references to the upper or high term to
reflect the midterm for count 1. The
trial court is directed to issue an amended abstract of judgment to correct all
references to the upper or high term to reflect the midterm for count 1 and to
check the appropriate box under No. 4 that appellant’s sentence was a
“two-strike” sentence.
The judgment is affirmed. Consistent with our discussion
the clerical error in the verdict form, issue amended minutes for the sentencing
hearing, issue an amended abstract of judgment, and forward a copy of the
amended abstract of judgment to the Department
of Corrections.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
[1] All undesignated
statutory references are to the Penal Code.
[2] They were not
legally married but had been together for 19 years and had a son together.
