P. v. Silva
Filed 1/31/14 P. v. Silva CA5
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prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RUBEN SILVA,
JR.,
Defendant and Appellant.
F064330
(Super. Ct. No. CRM005996A)
APPEAL
from a judgment of the Superior Court of
Merced County. Ronald W. Hansen,
Judge.
Solomon
Wollack, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Stephen G. Herndon and Carlos A. Martinez, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
Ruben Silva, Jr. (defendant) stands
convicted, following a jury trial, of second degree murder committed for the
benefit of or in association with a criminal street gang (Pen. Code,
(5), 187, subd. (a); count 1) and active participation in a criminal street
gang (§ 186.22, subd. (a); count 2).
for a new trial was denied, and he was sentenced to prison for 15 years to
life plus two years and ordered to pay restitution and various fees, fines, and
assessments.
On
appeal, we reject defendant’s claims he is entitled to reversal because
(1) the trial court failed to clear up the jury’s confusion regarding the
elements of aiding and abetting, (2) the trial court erred by instructing
with CALCRIM No. 3261, and (3) the jury was inadvertently given a copy of
a legal memorandum that addressed the natural and
2 should have been stayed pursuant to section 654. Accordingly, we modify the sentence on count
2, but otherwise affirm.
FACTS
I
Shortly
after 11:00 p.m. on November 6, 2009, a group of men
walked into the Pastime Club in Gustine.
who was wearing a black T-shirt; Albert Aleman, who was wearing a white
T-shirt; Richard Naudin, who was wearing a hoodie; Brandon Carvalho, who was
wearing a black and white Raiders jacket; identical twins Mark and Anthony
Oseguera, one of whom was wearing a long jacket and thermal shirt, and the
other of whom was wearing a long-sleeved white shirt; and Andrew Silva. All were members of the Mongols outlaw
motorcycle gang except Silva, who was an affiliate. They appeared to search the bar, then left.
A
short time later, Ashley Klug, Sara Galas, Bill James, Denise Gibbons, Amaro
Morais, and Jennifer Herbst were in the Gustine Club when a group of men walked
in. To Herbst, the men looked like gang
members.
title="">[4] At least part of the group — including
defendant — headed for James, yelling something like, “Mongols, motherfucker,
Mongols, Mongols. What’s up? Mongols.†They surrounded James, who responded, “I don’t
give a shit†or “I don’t give a fuck who you are,†and started to take off his
jacket. Klug heard the sound of a knife
opening. Galas saw defendant make a
motion like he was flipping out a knife and she heard a knife open, although
she did not see a weapon. Morais saw one
of the men make a motion with his hand, and he heard a “flick†that sounded
like a knife.
James
had his jacket about halfway off when the man with the gray hoodie struck him
in the face and all but one of the rest attacked James. Klug, who was sitting next to James, did not
see James actually get stabbed, but when she got home, she found blood on her
sweater. Gibbons similarly did not see
James get stabbed, but she believed defendant was one of the men who lunged for
James.
Morais saw
someone between defendant and James, and defendant leaning over, making a
motion that kind of went over the top and down on James. The one who Morais believed had a knife was
making a thrusting motion. Morais
grabbed this man from behind and was trying to pull him off when the man who
had not joined in the attack pulled a canister about the size of a small fire
extinguisher from inside his shirt and discharged pepper spray or a similar
substance.
title="">[5] Morais could not see, but he felt everyone
“swarming†toward the front door. Morais
managed to run out where he saw James standing in the doorway of a white
extended-cab pickup. It was parked in
one of the parking stalls, the passenger side door was open, and James was
fighting with someone in the backseat.
James
was throwing punches when defendant, whom Morais described as wearing a white
T-shirt with a Mongols insignia on the back, ran up behind James and stabbed
him twice in the back with a 10- to 12-inch knife.
something to James, then ran off. Morais
did not know where he went; he was looking at James, and all the vehicles took
off. James fell to the ground, bleeding
badly in several places.
Gibbons
saw James collapse. She bent down to see
what was wrong with him, and her hands came up “full of blood.†She saw a “silverish†extended-cab pickup pull
away with the passenger side door partially open. Galas saw the men who had attacked James jump
in two or three different vehicles. One
was a car, but defendant got in a dark-colored, black or charcoal gray truck. Herbst saw people jumping into a white
Chevrolet Tahoe and a gray pickup and quickly driving away.
Gustine
Police Officer Warner was the first officer on the scene, arriving shortly
after 11:36 p.m. He found James covered in
blood and face down, partly in the roadway and partly on the sidewalk, in front
of the Gustine Club. A subsequent
autopsy revealed James had seven sharp force injuries (stab and incised wounds)
to his body.
title="">[7] Two of the wounds had an estimated depth of
penetration of nine inches. Of these,
one nearly cut the liver in half, passed through the diaphragm and one lung,
and nicked the superior vena cava (a large vessel around the heart). The other penetrated the back, entered the
abdominal cavity, and incised multiple loops of small bowel. Two of the other wounds had an estimated depth
of penetration of four inches. One of
these passed through part of one lung.
The other penetrated a lung, incised the pericardium, and involved the
vital structure near the center of the lung itself. The cause of death was multiple stab wounds. It was possible two or more knives were used. The mechanism of death was bleeding to death,
a process that takes time that varies with the underlying health of the person.
Given James’s wounds, he would have had
the ability to continue to move and attempt to defend himself even though he received,
what turned out to be, a mortal wound.
At
approximately 11:30 p.m., Merced County Sheriff’s Deputy Daniel headed from Los
Banos toward Santa Nella in search of a white Chevrolet Tahoe last seen headed
southbound on Highway 33. As he came
down the overpass on Henry Miller Road, he saw a white Chevrolet Tahoe
southbound on Highway 33. It was followed
so closely by a silver pickup that Daniel equated it to a Nascar race, with the
pickup drafting the Tahoe.
name="_ftnref8" title="">[8] Both vehicles turned into the parking lot of
the Ramada Inn (now, the Hotel De Oro), then the Tahoe went north and the
pickup went south.
As
Daniel came around the north side of the hotel and approached the Tahoe, four to
six males ran around the vehicle then they went into the hotel.
lot, where he could watch the Tahoe, and called for additional units. The men did not return. A group of 10 or more other men came out and
were in the breezeway adjacent to the vehicle, but they never actually
approached the Tahoe. Two males, a
Hispanic female, and a White female exited the upstairs east wing of the
facility. The White female came down the
stairwell, opened the Tahoe with a remote, retrieved some items, and went back
upstairs. She made three trips in all,
then went back inside, followed by the Hispanic female and the two males.
After
other officers arrived and established a perimeter, an approximately
16-inch-long sheath or scabbard that said “Mongols†was found lying in front of
the Tahoe. Near the sheath was a black
beanie/watch cap with a red stain on it that could have been blood. Another black beanie was found on the south
side of the parking lot.
The
Tahoe and the pickup were impounded and processed for evidence. James’s blood was found in several locations
both inside and outside the pickup, on the passenger side. Although defendant was excluded as a possible
contributor to any of the blood samples taken from the pickup, his thumbprint
was found on a snack bag inside the vehicle. James’s blood was also found in several
locations inside the Tahoe, as was blood from Mark or Anthony Oseguera.
contributor to any of the blood samples taken from the Tahoe. Fingerprints from Aleman and Naudin were found
on or in the Tahoe.
The
next morning, November 7, a maintenance worker at the hotel found a
long-sleeved, white cotton shirt with red stains around the cuff and a large
hunting-type knife under the first step of the back stairway at the east end of
the building. The knife — which Morais
testified “look[ed] very much†like the knife he saw used to stab James in the
back — was next to the shirt. Traces of
blood belonging to James and Mark and/or Anthony Oseguera were found on the blade.
Defendant was excluded as a possible
contributor. A mixture of DNA was found
on the handle; Anthony and Mark Oseguera were possible contributors, James
could not be excluded as a possible contributor, and defendant was excluded as
a possible contributor. A black, white, and
gray-plaid flannel shirt/jacket, and one or more white T-shirts, were found in
a garbage can at a different location at the hotel.
of the T-shirts.
That
same morning, a black-handled folding knife was discovered near the street end
of one of the parking stalls down the block from the Gustine Club. Traces of James’s blood were found on the
handle. A DNA mixture of at least three
contributors was also found on the knife. Mongol Rafael Valdez was included as a
possible major contributor.
contributor toward either sample.
Later
that day, defendant went to the Gustine Police Department to try to get the
pickup released from impound. Defendant,
who gave a home address in Whittier, explained he had arrived at the motel
about 4:00 p.m. Friday afternoon, and had gone by himself to a bar in
Gustine. He could not recall the name of
the bar.
title="">[13] Defendant related that he walked in to get a
drink, saw a commotion and Mace being sprayed, got scared, ran out, and got in
the truck. As he started backing out, “some … dude†started “jumping at†the vehicle
and tried to lunge through the window.
Defendant “threw [the truck] in reverse†and took off. Nobody was in the vehicle with him. (Full capitalization omitted.) Defendant had Mace in his eyes and could not
describe the person, but when he got back to the hotel, he saw blood on the
passenger door, which was the side through which the person had tried to gain
entry. Defendant used a rag to clean it
off. Defendant denied affiliating with
the Mongols or having any friends who were Mongols. He denied having seen the individual before or
exchanging words with him.
Sergeant Christopher Cervantes of the Montebello Police
Department testified as an expert on the Mongols.
Mongols are commonly referred to as a “one-percenter gang,†meaning they belong
to the one percent of American motorcyclists who are not law-abiding. The Mongols (who had 250 to 300 members in
2009) engage in both criminal and noncriminal activities. Their criminal activities include petty theft
of motorcycle parts, grand theft of motorcycles, drug sales, firearms proliferation,
witness intimidation, violent assaults, and murder. Cervantes testified that, although Mongols
have enemies among the Mexican Mafia-affiliated Sureño street gangs in Southern
California, their “most bitter and probably bloody rival†is the Hell’s Angels,
an enmity that has endured for years. The
Mongols — whom Cervantes characterized as even more violent than the Hell’s
Angels — “associate[] with†the colors black and white, and typically wear any
variation of those colors; the Hell’s Angels, the colors red and white. Both the Mongols and the Hell’s Angels claim
Central California as their territory, although the Hell’s Angels are a
“dominant presence†in Northern California, including the Merced area.
According
to Cervantes, it is common for the Mongols to have large parties. Their standard protocol for such events is to rent
hotels or other facilities and run their own security. When coming into enemy territory, Mongols are
completely self-regulated. They stay
where they are at, such as at a hotel they know is going to be safe. In Cervantes’s experience, when the Mongols
are together in large groups at a hotel or at an event, law enforcement has
very few problems with them. When small
groups leave and go to bars or other public places, however, simple fights, stabbings,
shootings, or assaults occur.
Cervantes
related that a “rat pack†— when a person gets jumped or beaten by multiple
people — is a common activity of the Mongols. Cervantes testified that Mongols are
indoctrinated into an “at war†mindset that is “on guard†for the Mexican Mafia
and, more importantly, for Hell’s Angels who are to be dealt with “on[ sight]â€
which “included murder.†A Mongol must
“jump in†and “protect [their] members†if a member of a Mongols’ chapter or
organization is involved in any type of physical activity or fight. Mongols are required to carry knives, and
weapons may be used even if the victim does not have one. The Mongols’ written protocol reminds members
that what they do reflects on the club, and to “[n]ever make the club look bad.â€
When someone “disrespects†one Mongol,
it is viewed as extending to the whole group.
Failing to address the insult makes the club “look bad.†Such failure could result in the individual
being kicked out of the club. Cervantes
explained that a Mongol would not be with the group long if he failed to act. Because “disrespect†to one is “disrespect†to
all, if a group of Mongols were together and one was “disrespected,†the group
would get involved. If they were not
armed (for instance, because they were in a bar that checked for weapons at the
door), then they would use their feet (kicks), or bottles, or anything similar
in the attack. If they were armed, they
would “go immediately to†weapons. The
entire group would participate in the attack; they are empowered by numbers,
acting as a group solidifies their unity.
Typically, they would assist each other in getting rid of evidence.
In
Cervantes’s opinion, going into the Gustine Club and yelling “Mongols,
motherfuckers, Mongols, what’s up?†was to see “who wanted to disrespect their
presence.†Given his appearance, James
could easily have been mistaken for a Hell’s Angel, and his response to the
group yelling out their gang name would have been considered disrespectful. In Cervantes’s opinion, “disrespect …
ultimately ended up costing … [James his] life.â€
Cervantes
viewed a video from the Pastime Club and identified the Mongols who walked into
the bar. The group did not make contact
with anyone inside, nor did they order drinks.
Instead, they looked around in “high alert.†In Cervantes’s experience, they were
identifying problems and/or rivals, meaning potential Hell’s Angels. Cervantes explained that the group was a “war
party.†They left the secured hotel,
then secured the bar. When nothing
sparked their interest, either the presence of Hell’s Angels or disrespect,
they left. In Cervantes’s opinion, the
group was “on a hunt.†They were in
Northern California — where the Hell’s Angels dominate — and entered the bar
looking for issues. When they found no
one, they went on to the next bar. Although
a Hell’s Angel would be their preferred victim, anyone disrespecting them would
do. Cervantes opined that when the group
left the hotel that night, they were “100 percent sure†this type of trouble
was possible and that somebody could die, although what occurred was not a
planned event.
II
Gary
Mendonica was in the Gustine Club at the time of the incident. He was watching television when some kind of
aerosol was discharged in the area behind him. He did not recall hearing anyone yell
“Mongols†or anything similar. Mendonica
ran outside. He did not really see a
fight outside, but he saw James stumble out and fall down.
Warner
interviewed Morais outside the Gustine Club shortly after the incident. Morais related that one person who came into
the club bumped into James, and that James said, “What the fuck motherfucker.†Asked if the individuals specifically targeted
or went to James, Morais said no.
Merced
County Sheriff’s Detective Taylor interviewed Morais on November 7. Morais related he was about 20 to 25 feet from
the door, and James was about eight feet down from him toward the back, when a
group of about six men came “piling in.†One, who was wearing a black, gray, and white-checkered
flannel shirt, said, “Mongols motherfucker, what’s up? Mongols.
What’s up? What’s up? Mongols.
Mongols.†As the man walked by,
Morais saw him reach into his pocket and make a motion, and then heard a sound
he knew was a knife. Out of the corner
of his eye, he saw James quickly turn around.
Morais thought somebody bumped into him, or perhaps it was when the man yelled
“Mongols.†Whatever the reason, the
group went straight to James and were “on him†all at once. The man with the knife looked like he punched
James in the upper torso. According to
Morais, the group were all wearing Mongol “one-percenter†T-shirts, white with
black print, but no vests. Someone
discharged pepper spray then they all “rush[ed] out.â€
Morais
related he managed to get outside where he saw a gray or silver extended-cab
pickup. The passenger side door was
open. James was standing in the door,
“cracking†somebody inside the truck. Someone
then came from Morais’s left. Morais
jumped up to grab him, but something happened and Morais fell. When he looked up, he saw the man hit James
twice in the back. Morais described the
man as five feet seven or eight inches tall, between 180 and 210 pounds, short
and squatty, with a “[b]ig mouth on him.â€
men who walked in, and it was the one yelling “Mongols motherfucker, Mongols.†The man who hit James did not get into the
truck, but got into his own vehicle. There
was a white vehicle on the other side of the truck.
Detective
Clark talked to defendant shortly after defendant was detained. Clark observed no obvious signs that defendant
had been in a fight.
James Hernandez,
a professor of criminal justice at California State University, Sacramento,
testified as a gang expert. Hernandez
disagreed with Cervantes’s assessment of the group “storming†the Pastime Club. In Hernandez’s opinion, the video simply
showed a group of men going into a bar.
He opined that they walked toward the restroom to use the bathroom. Based on his review of various reports and
other materials, Hernandez did not believe the group left the hotel looking for
trouble. He found nothing to suggest
James could have been confused with, or identified as, a Hell’s Angel. Hernandez disagreed with Cervantes’s opinion
that the group was a war party, and found nothing unusual in the group looking
around their location.
Hernandez
did not believe it was necessarily true that every Mongol present would have
participated in the stabbing. He
explained there were a growing number of situations in which an altercation
began and members of the club dragged their own people away. He found a lot of the behavior of the outlaw
motorcycle clubs to have changed “drastically†in the few years before trial.
Robert
Shomer, an experimental psychologist, testified as an expert on eyewitness
identification. He explained that
eyewitness identification of a stranger has a low level of reliability,
especially if the identification is made under circumstances including a sudden,
unexpected event; multiple individuals; high stress; some kind of impairment of
the eyewitness such as fatigue, drugs, alcohol, or the focus of attention; the
lighting; and the distance. Further, the
identification procedure itself, if not done correctly, taints, alters, and
sometimes ruins the evidence. The police
must get as much information as possible from the witness before showing him or
her anything, because showing the witness something alters the evidence. Memory is dynamic and incorporates information
obtained from other people. The most
accurate reports are the initial reports made by a witness, after he or she has
had a little time to calm down. The
initial reports do not suffer from memory decay or, to the extent witnesses can
be kept from talking to each other, from incorporation of information from
other people.
In
answer to a hypothetical question based on evidence adduced at trial, Shomer
opined the situation was not one in which perceptions would be expected to be
highly accurate. If eyewitnesses were
shown a video taken at the first location, but no video of the second location
where the stabbing occurred, and they were then shown photographic lineups, the
procedure would be suggestive and tainting, and likely to change the evidence
in the witness’s head. The procedure
could produce a false identification.
DISCUSSION
I
Defendant
says the trial court violated his due process rights by failing to clear up the
jury’s confusion about the elements of aiding and abetting. We conclude the trial court acted within its
discretion.
A. Background
Defendant was tried as an aider and
abettor. In pertinent part, the jury was
instructed, pursuant to CALCRIM No. 400 (Aiding and Abetting: General Principles):
“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
that perpetrator who directly committed the crime. A person is guilty of the 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 in
one crime, and [sic] a person may
also be found guilty of other crimes that occurred during the commission of the
first crime.â€
Pursuant
to CALCRIM No. 401 (Aiding and Abetting:
Intended Crimes), jurors were told:
“To
prove that the defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that: One,
the perpetrator committed the crime; two, the defendant knew that the
perpetrator intended to commit the crime; three, before or during the
commission of the crime the defendant intended to aid and abet the perpetrator
in committing the crime; and four, 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 of these requirements are proved the defendant does not need to actually
have been present when the crime was committed to be an aider and abettor.
“If
you conclude that the defendant was present at the scene of the crime and
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.â€
Finally,
jurors were instructed, pursuant to CALCRIM No. 403 (Natural and Probable
Consequences (Only Non-Target Offense Charged)):
“Before
you may decide whether the defendant is guilty of murder as an aider and
abettor you must decide whether he is guilty of assault with a deadly weapon or
with force likely to produce great bodily injury, assault or battery.
“To
prove that the defendant is guilty of murder as an aider and abettor the People
must proof [sic] that: One, the defendant is guilty of assault with
a deadly weapon, or with force likely to produce great bodily injury, assault
or battery, either as a perpetrator or as an aider and abettor;
“Two,
during the commission of assault with a deadly weapon or with force likely to
produce great bodily injury, assault or battery, a co-participant in that
assault with a deadly weapon or with force likely to produce great bodily
injury, assault or battery committed the crime of murder; and
“Three,
under all of the circumstances a reasonable person in the defendant’s position
would have known that the commission of the murder was a natural and probable
consequence of the commission of the assault with a deadly weapon or with force
likely to produce great bodily injury, assault or battery.
“A
co-participant in a crime is the perpetrator or anyone who aided and abetted
the perpetrator. It does not include a
victim or innocent bystander.
“A
natural and probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes.
In deciding whether a consequence is natural or probable, consider all
the circumstances established by the evidence.
If the murder was committed for a reason independent of the common plan
to commit the assault with a deadly weapon or with force likely to produce
great deadly [sic] injury, assault or
battery, then the commission of murder was not a natural or probable
consequence of assault with a deadly weapon or with force likely to produce
great bodily injury, assault or battery.
“To
decide whether the crime of murder was committed, please refer to the separate
instructions that I will give you on that crime.
“The
People are alleging that the defendant originally intended to act as a
perpetrator or intended to aid and abet the commission of assault with a deadly
weapon or with force likely to produce great bodily injury, assault or battery.
“If
you decide that the defendant perpetrated or aided and abetted one of those
crimes and that murder was a natural or probable consequence of that crime the
defendant is guilty of murder. You do
not need to agree about which of these crimes the defendant aided and abetted.â€
During
deliberations, the jury sent out the following question: “If Ruben Silva didn’t know the people he was
with were carrying weapons (knives and more) would simply driving the vehicle
away from the scene (with no one with him) meet the test of aiding and
abetting?†The trial court’s initial
reaction was “‘[n]o.’†Defense counsel concurred. The prosecutor objected because such a
response would invade the jury’s duties to determine the facts and apply the
law given by the court and, he argued, the court should refer to the instructions
on aiding and abetting so the jury would apply the law to the facts in the
question. The court agreed, finding its
initial proposed response created a risk of influencing jurors on what their
factual findings should be. Defense
counsel again urged the court to answer the question “‘[n]o,’†because under
the fact pattern presented, there would be no aiding and abetting. Over defense objection, the trial court told
the jury:
“Okay. Ladies and Gentlemen, in response to your
question, the Court cannot tell you how to decide the facts. You are the adjudicator and body that decides
what the facts are in this matter. Once
you decide what the facts are I call your attention to Jury Instruction 400 and
403. Okay.
“400
sets forth the four elements required as an aider and abetter [
required under the natural and probable consequences doctrine as to what the
law requires, okay.
“That’s
the best I can provide to you.
Okay. Good luck. Thank you.â€
The
next day, the jury returned its guilty verdicts. Defendant subsequently moved for a new trial,
in part based on the trial court’s failure to answer “‘[n]o’†to the jury’s
question. Following argument, the trial
court denied the motion.
B. Analysis
After
the jury retires for deliberation, “if they desire to be informed on any point
of law arising in the case, … the information required must be
given .…†(§ 1138.) “The court has a primary duty to help the
jury understand the legal principles it is asked to apply. [Citation.]
This does not mean the court must always elaborate on the standard
instructions. Where the original instructions
are themselves full and complete, the court has discretion under section 1138
to determine what additional explanations are sufficient to satisfy the jury’s
request for information.
[Citation.] Indeed, comments diverging
from the standard are often risky.
[Citation.] [A] trial court [may
be] understandably reluctant to strike out on its own. But a court must do more than figuratively
throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question
whether further explanation is desirable, or whether it should merely reiterate
the instructions already given.†(
97.)
“An
appellate court applies the abuse of discretion standard of review to any
decision by a trial court to instruct, or not to instruct, in its exercise of
its supervision over a deliberating jury.
[Citations.]†(
745-746; accord, People v. Hodges (2013)
213 Cal.App.4th 531, 539.) “[D]iscretion
is abused whenever the court exceeds the bounds of reason, all of the
circumstances being considered.
[Citations.]†(
72.)
Applying
this test, we find no error. The trial
court here did not “figuratively throw up its hands and tell the jury it [could
not] help†(People v. Beardslee, supra, 53
Cal.3d at p. 97); rather, it considered how best to aid jurors while
maintaining neutrality as between the parties.
“‘The influence of the trial judge on the jury is necessarily and
properly of great weight,’ [citation], and jurors are ever watchful of the words
that fall from him [or her].
Particularly in a criminal trial, the judge’s last word is apt to be the
decisive word.†(Bollenbach v. United States (1946) 326 U.S. 607, 612.) “‘“An instruction should contain a principle
of law applicable to the case, expressed in plain language, indicating no
opinion of the court as to any fact in issue.â€â€™
[Citation.]†(
187, 198; see § 1127 [“The court shall inform the jury … that the jurors
are the exclusive judges of all questions of fact submitted to
them .… Either party may present to
the court any written charge on the law, but not with respect to matters of
fact ….â€].)
We
question whether the jury’s inquiry truly sought guidance on a point of
law. (Compare People v. Santos (1990) 222 Cal.App.3d 723, 745-746 with
332, 349, 354-355; People v. Thoi (1989)
213 Cal.App.3d 689, 697-698 & fn. 5.)
“Whether a person has aided and abetted in the commission of a crime
ordinarily is a question of fact. [Citations.]â€
(In re Lynette G. (1976) 54
Cal.App.3d 1087, 1094, italics added.) A
trial court’s answer to a jury question pursuant to section 1138 is an instruction on the
law, not a comment on the evidence, and as such must be neutral. (See, e.g., People v. Wright (1988) 45 Cal.3d 1126, 1141.) “‘Questions or illustrations from the jury
may be phrased so that a simple affirmative or negative response might favor
one party’s position, place undue weight on certain evidence, or indicate that
the trial judge believes certain facts to be true when such matters should
properly be determined by the jury.
Because the jury may not enlist the court as its partner in the factfinding
process, the trial judge must proceed circumspectly in responding to inquires
from the jury. The court may properly
attempt to avoid intrusion on the jury’s deliberations by framing responses in
terms of supplemental instructions rather than following precisely the form of
question asked by the jury.’
[Citations.]†(
967, 987.)
name="_ftnref16" title="">[16] “When a question shows the
jury has focused on a particular issue, or is leaning in a certain direction,
the court must not appear to be an advocate, either endorsing or redirecting
the jury’s inclination.†(
1323, 1331.)
name="_ftnref17" title="">[17]
Even assuming the jury here was requesting information on
a point of law, the trial court’s decision not to give a categorical answer was
reasonable because, under the hypothetical facts in the jury’s question, “noâ€
was not necessarily the correct answer.
The jury’s question posited defendant was with people, but did not know
they were carrying weapons.
have such knowledge to aid and abet simple assault or battery or assault by
means of force likely to produce great bodily injury, or for murder to be a
natural and probable consequence of the assault. (See People
v. Medina (2009) 46 Cal.4th 913, 921-923.) And, while mere presence at the scene of an offense is insufficient to
constitute aiding and abetting (People v.
Miranda (2011) 192 Cal.App.4th 398, 407), “‘one who is present for the
purpose of diverting suspicion, or to serve as a lookout, or to give warning of
anyone seeking to interfere,’†is a principal in the crime committed (
Cal.App.4th 733, 743-744). Advance
knowledge is not a prerequisite for aiding and abetting liability. (Id.
at p. 742.) To answer the jury’s
question “no†and have that direct answer be legally correct, the trial court
would have been constrained either to explain that a negative answer applied
only under particular factual circumstances, or how presence could constitute
aiding and abetting. Either explanation
could have had a harmful, rather than clarifying, effect as far as defendant
was concerned. (See People v. Hill (1992) 3 Cal.App.4th 16, 25, disapproved on another
ground in People v. Nesler (1997) 16
Cal.4th 561, 582, fn. 5.)
“Where,
as here, the original instructions are themselves full and complete, the court
has discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.]â€
(People v. Gonzalez (1990) 51
Cal.3d 1179, 1213, superseded by statute on another ground as stated in
691.) Under the circumstances, the trial
court here acted reasonably in referring the jury back to the aiding and
abetting instructions. (See
p. 1213.)
Defendant
says, however, that the trial court erred by specifically calling the jury’s
attention to CALCRIM Nos. 400 and 403, rather than CALCRIM No. 401, which set
out the elements of aiding and abetting.
misspoken as to the number of the instruction that contained the elements, its
reference to “the four elements required†advised jurors of what they should go
back and consider again. Nothing in the
record suggests jurors remained confused after following the court’s direction
or could not find the information to which the court referred them, or that the
trial court’s response somehow discouraged them from asking additional
questions if they had any. (See
234; People v. Beardslee, supra, 53
Cal.3d at pp. 96, 98.)
We
conclude the trial court did not abuse its discretion in responding to the
jury’s question by referring jurors back to the original, correct instructions
rather than directly and categorically answering. We further conclude any error in the court’s
specification of instructions was harmless.
Even if we consider the error a failure adequately to answer the jury’s
question, it did not constitute a failure to instruct on all elements of an
offense or of aiding and abetting liability in light of the instructions
originally given.
name="_ftnref20" title="">[20] Accordingly, it is subject
to the prejudice standard of People v.
Watson (1956) 46 Cal.2d 818, 836. (
at p. 539; People v. Eid (2010)
187 Cal.App.4th 859, 882.) There is no
reasonable probability defendant would have obtained a more favorable result
had the trial court specified CALCRIM No. 401.
There was manifestly no due process violation. (See Weeks
v. Angelone, supra, 528 U.S. at
pp. 231-232; Estelle v. McGuire (1991)
502 U.S. 62, 72-73.)
CALCRIM No. 3261
For unknown
reasons, the trial court followed the instructions on the natural and probable
consequences doctrine with a modified, truncated version of CALCRIM No. 3261
(In Commission of Felony: Defined —
Escape Rule), which told jurors: “The
People must prove that the defendant aided and abetted the commission of
murder. The crime of murder continues until the perpetrators have actually reached
a temporary place of safety. The
perpetrators have reached a temporary place of safety if they have successfully
escaped from the scene and are no longer being chased.†(Italics added.)
Defendant
now contends the trial court violated his due process rights by giving this
instruction, the italicized portion of which he says erroneously allowed the
jury to find aiding and abetting liability even if defendant did not form the
requisite intent, or perform the necessary act, until after the murder had already
been completed. We conclude the error
was harmless.
name="_ftnref21" title="">[21]
We
independently assess whether an instruction correctly states the law. (People
v. Posey (2004) 32 Cal.4th 193, 218.)
As given here, CALCRIM No. 3261 does not. “[A] murder ends with the death of the
victim.†(People v. Esquivel (1994) 28 Cal.App.4th 1386, 1397; accord,
466, 471.) The escape rule
determination of aider and abettor liability (People v. Cooper (1991) 53 Cal.3d 1158, 1169; see
256 & fn. 5), even though “the temporal threshold for establishing guilt —
a fixed point in time at which all elements of the substantive offense are
satisfied so that the offense itself may be considered to have been ‘
attempted — is not synonymous with
the ‘commission’ of that crime for the purpose of determining aider and abettor
liability. [Citation.]†(People
v. Montoya (1994) 7 Cal.4th 1027, 1040; People
v. Cooper, supra, at p. 1164.)
“It
is settled that if a defendant’s liability for an offense is predicated upon
the theory that he or she aided and abetted the perpetrator, the defendant’s
intent to encourage or facilitate the actions of the perpetrator ‘must be formed
prior to or during “commission†of
that offense.’ [Citations.]†(People
v. Montoya, supra, 7 Cal.4th at p. 1039.) “In a simple murder case, i.e., not involving
the felony-murder rule, a person may aid and abet a murder after the fatal blow
is struck as long as the aiding and abetting occurs before the victim
dies. After the victim dies, what would
be aiding and abetting legally turns into being an accessory ‘after a felony
has been committed.’ (§ 32.)†(People
v. Celis, supra, 141 Cal.App.4th at pp. 473-474.) Defendant “cannot be retroactively culpable
for the killing of [James] if it occurred before [defendant’s] becoming an
aider and abettor. Any other holding
would ignore the primary rationale for punishing aiders and abettors as
principals, which is to deter them from aiding or encouraging the commission of
offenses. [Citations.]†(People
v. Esquivel, supra, 28 Cal.App.4th at p. 1397.)
Permitting
aider and abettor liability to be predicated on intent formed after the murder
was completed constitutes an invalid legal theory. Such an error generally requires reversal,
“absent a basis in the record to find that the verdict was actually based on a
valid ground.†(People v. Guiton (1993) 4 Cal.4th 1116, 1129, fn. omitted.) Had the issue before the jury been whether
defendant directly aided and abetted murder, the rule of reversal might well
apply here.
name="_ftnref23" title="">[23]
However,
“[i]n assessing a claim of instructional error, ‘we must view a challenged
portion “in the context of the instructions as a whole and the trial record†to
determine “‘whether there is a reasonable likelihood that the jury has applied
the challenged instruction in a way’ that violates the Constitution.â€â€™ [Citations.]â€
(People v. Jablonski (2006) 37
Cal.4th 774, 831; accord, Estelle v. McGuire,
supra, 502 U.S. at p. 72.)
“‘“[A] single instruction to a jury may not be judged in artificial
isolation .…â€â€™ [Citations.]†(People
v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in
421, fn. 22.)
The
issue before the jury was not whether defendant directly aided and abetted murder,
but whether he directly aided and abetted a specified assaultive crime of which
murder was a natural and probable consequence.
Jurors were expressly told that before they could decide whether
defendant was guilty of murder as an aider and abettor, they had to decide
whether he was guilty of one of the specified assaultive offenses. “‘Jurors are, of course, presumed to follow
the instructions given by the court.’
[Citation.]†(
1001, 1044.) They were instructed that
to find aiding and abetting, defendant had to form the requisite intent before
or during the commission of the crime. Significantly, they were never told any of the
specified assaultive crimes continued until the perpetrators reached a place of
temporary safety. Jurors were further
told that to prove defendant guilty of murder as an aider and abettor, the
People had to prove (1) defendant was guilty of one of the specified
assaultive offenses, either as a perpetrator or as an aider and abettor;
(2) during the commission of said specified assaultive offense, a
coparticipant in that offense committed the crime of murder; and (3) a
reasonable person in defendant’s position would have known the commission of
the murder was a natural and probable consequence of the commission of the
specified assaultive offense. Murder was
defined because jurors had to decide whether it was committed by a
coparticipant in the assaultive offense.
to find commission of an act that caused the death of another person. On the evidence presented, the requisite act
could only have been the stabbing of James, the timing of which could not have
been impacted by CALCRIM No. 3261. Under
the circumstances, CALCRIM No. 3261 did not present jurors with an erroneous
legal theory; it was irrelevant.
As
given, the first sentence of CALCRIM No. 3261 stated: “The People must prove that the defendant
aided and abetted the commission of murder.†(Italics added.) However, jurors were told to
consider the instructions together. We
presume they did so. (
p. 1044.) Read in context of the
instructions as a whole, the first sentence merely clarified the
aided and abetted murder; other instructions made it clear jurors could not go
immediately to that issue, but first had to decide whether defendant perpetrated
or aided and abetted a specified assaultive crime and then if murder was a
natural and probable consequence of that crime.
If jurors did not find defendant perpetrated or aided and abetted a
specified assaultive crime, there is no way, under the instructions as a whole
and the evidence at trial, they could have found him guilty of murder based
solely on what occurred on the way back to the hotel.
We
recognize the prosecutor briefly referred to CALCRIM No. 3261 in arguing to the
jury: “[James] gets hit with the knife,
he goes down, and the defendant drives away.
What’s important is this isn’t something -- this is the act of murder
still in progress. The crime of murder
hasn’t ended yet. It doesn’t end until they
get back to Santa Nella and there is a jury instruction that tells you that.†However, there was no other mention of the
instruction. More importantly, the
prosecutor never suggested defendant could be guilty if he did not form the
intent to aid and abet until he reached Santa Nella or until James died. Nor did he argue defendant could be guilty
simply by driving away or simply aiding and abetting an escape of the
perpetrators. Rather, he argued
defendant was guilty of murder by aiding and abetting the target crime of
assault with a deadly weapon because he assisted in the fight in the bar and
because he was the getaway driver. This
was a valid theory for murder liability based on aiding and abetting principles.
The
following occurred during defense counsel’s summation:
“[DEFENSE
COUNSEL:] And he had to know that the
commission of the crime, before or during the commission of the crime defendant
intended to aid and abet the perpetrator.
That he intended to, before and during the crime he intended to aid the
perpetrator. And the reason I think
that’s important is don’t be confused by the fact that my client got in his
truck and drove back to the hotel, and that is aiding and abetting. That is not.
He had to know before the crime was committed and he had to be
participating during the crime.
“There
is another crime if you felt he didn’t know before and he didn’t know what was
going on during but say he left the place to avoid something at that point left
the place, that is aiding and abetting possibly after the fact, which is not
murder, that’s totally different case.
Totally different scenario.
“[PROSECUTOR]: Objection, Your Honor. Misstates the law.
“THE
COURT: Yeah. Sustained.â€
Defendant
says the prosecutor’s objection and trial court’s ruling, coupled with the
instructional error, curtailed defense counsel’s ability to argue a key aspect
of the defense — that to be guilty, defendant had to have formed the requisite
intent before the drive back to the hotel. We disagree. The prosecutor did not object to defense
counsel’s argument that defendant had to intend to aid and abet before or
during the commission of the crime, and that merely getting in the truck and
driving back to the hotel was not aiding and abetting. Rather, the objection was to defense
counsel’s apparent attempt to bring the crime of accessory into the picture.
alive when defendant left the scene, he could not be guilty of accessory after
the fact to murder. (
at pp. 471-472.) Further, the crime of
accessory after the fact was not charged, nor was it a lesser included offense
of the murder charge. Hence, any
suggestion the jurors might convict defendant of something other than murder
was incorrect. (See People v. Jennings
The objection to this suggestion was properly sustained.
Finally,
we disagree with defendant’s prejudice argument that the instructional error
permitted the jury to convict him under an erroneous legal theory under
1122. There is no way the jury could
have found defendant guilty on the basis that it might have found he first
formed the intent to aid and abet the perpetrators on the way back to the hotel
by using his vehicle to “draft[]†the suspect Tahoe vehicle. This theory was never suggested, let alone
relied upon, by the prosecution as an alternative theory for conviction. As such, “the Green rule†as explained in Guiton
does not apply here. (
rule adopted in People v. Green (1980)
27 Cal.3d 1 where the prosecutor expressly urged a kidnapping verdict on an
invalid alternate theory of asportation].)
The erroneous giving
of CALCRIM No. 3261 was harmless. (See
pp. 348-351; People v. Nguyen (2000)
24 Cal.4th 756, 765; People v. Hagen (1998)
19 Cal.4th 652, 670.) Defendant is not
entitled to reversal.
Defendant
claims his due process rights were violated when the jury was inadvertently
given a copy of a legal memorandum discussing the natural and probable
consequences doctrine. He says the issue
should be treated as instructional in nature; hence, he had no burden to prove
jurors actually read the memorandum.
Alternatively, he says trial counsel was ineffective for failing to
attempt to obtain such information from the jurors. We find no cause for reversal.
A. Background
As
previously stated, defendant’s jury was instructed on the natural and probable
consequences doctrine. Jurors were also
instructed that during trial, several items were received into evidence as
exhibits; they could examine whatever exhibits they thought would help them in
their deliberations; and the exhibits would be sent to the jury room when they
began to deliberate. After the jury was
directed to retire and begin deliberations, the trial court again noted the
exhibits would be brought in to them along with the verdict forms.
After
the jury returned its verdicts, jurors were told they could discuss the case
with the attorneys or with anyone else, but were not obligated to do so. They were told that if they did not want to
talk to the attorneys, to say so, and the attorneys were ordered to respect
those wishes and cease contact. The
attorneys and their representatives were further ordered not to contact jurors
“at any unreasonable time or place.â€
The
following day, the trial court sent an email to both counsel informing them
that, as the court clerk was collecting the exhibits from the jury room, she
found “intermixed with the exhibits†a memorandum that the court had prepared
for its own use. Both counsel were
provided with a copy of the memorandum, which is also contained in the clerk’s
transcript on appeal. As the trial court
subsequently stated for the record, and our independent comparison has
confirmed, it consisted solely of verbatim excerpts from both the majority
opinion, and Justice Brown’s concurring and dissenting opinion in
contained no independent analysis. The
court advised counsel it believed the memorandum “got stuck with the predicate
offenses.â€
name="_ftnref26" title="">[26]
Defendant
raised “[j]urors in possession of outside materials during deliberations†as a
ground upon which he moved for a new trial. In opposition, the prosecutor argued there was
no juror misconduct. The prosecutor
asserted the memorandum was neither evidence nor received from an outside
source; there was no showing the jury read or discussed it.
After
argument on the motion, the court reiterated the memorandum was merely an
excerpt of portions of Prettyman that
the court “cut and pasted†for its own use in preparing the jury instructions. The court expressed its belief “that during
the course of [the court’s] preparation of jury instructions and particularly
looking at the predicate offenses that somehow this document got intermixed
with the predicate offenses and that inadvertently was taken into the jury
room.†The court found no juror misconduct,
because the jurors did not seek to obtain information from any outside source
and the document was not evidence. The
court considered the situation as possibly being akin to an instructional error
because the memorandum amplified what the natural and probable consequences
doctrine was and the reason for it, but found it did not mislead the jury “on
the principles.†The court further
observed it was defendant’s burden to show jurors saw the document, and it
corrected defense counsel’s mistaken belief that the court had ordered no
contact with the jurors. Although the
court’s statement, as set out in the reporter’s transcript, is somewhat
unclear, it appears to have found any error harmless beyond a reasonable doubt.
was denied.
B. Analysis
The
parties disagree on the appropriate standard of review. Defendant argues that, although he raised the
issue now before us with a new trial motion, the substance of the error was the
same as an error in jury instructions; hence, we should employ the de novo
standard of review applicable to a claim of instructional error. (See People
v. Johnson (2009) 180 Cal.App.4th 702, 707.) The Attorney General, on the other hand, says
we should use the deferential abuse-of-discretion standard applicable to review
of a trial court’s ruling on a motion for a new trial. (See People
v. Thompson (2010) 49 Cal.4th 79, 140.)
If
we needed to determine the appropriate standard of review, the issue would be
complicated by the possibility of juror misconduct. In People
v. Clair (1992) 2 Cal.4th 629, 667, the California Supreme Court applied
the abuse-of-discretion standard to the defendant’s claim the trial court erred
in denying his new trial motion on the ground the jury received evidence out of
court.
title="">[28] In People v. Gamache (2010) 48 Cal.4th 347, 396 (Gamache), however, the state Supreme Court stated it independently
reviewed a trial court’s denial of a new trial motion based on alleged juror
misconduct.
name="_ftnref29" title="">[29]
Defendant’s
contention fails whichever standard we apply, and regardless of whether we
treat the legal memorandum in the jury room as potential jury misconduct or as
a species of instructional error.
However we view the issue, a prerequisite to defendant’s claim is a
showing one or more jurors actually read the memorandum. Defendant failed to make any such showing.
“To
succeed [on a claim of jury misconduct], defendant must show misconduct on the part of a juror .…†(People
v. Marshall (1990) 50 Cal.3d 907, 949, italics added; see, e.g.,
hearing that revealed jury watched unadmitted videotape inadvertently sent in
to jury]; People v. Brasure (2008) 42
Cal.4th 1037, 1070 [juror admitted in a declaration that she consulted
dictionary before penalty deliberations]; People
v. Williams (2006) 40 Cal.4th 287, 330 [after verdict, several pages copied
from Bible were discovered in jury room; defendant’s motion for new trial on
grounds of jury misconduct was supported by declarations from two jurors];
pp. 665-667 [upon realizing unredacted audiotape and transcript were sent
in to jurors, trial court examined jurors to determine what, if anything,
jurors had heard or read]; People v.
Cooper (1991) 53 Cal.3d 771, 833-835 [jurors informed court they knew of information
contained in material inadvertently admitted into evidence];
642-643 [defendant’s motion for new trial based on declaration by juror stating
another juror consulted dictionary during deliberations]; U.S. v. Vasquez (9th Cir. 1979) 597 F.2d 192, 193 [official court
file inadvertently left in jury room during deliberations; trial court
questioned jurors and learned most had at least glanced at file’s contents].) Even hearsay is not enough (
1256), and defendant did not even present that much, but instead merely relied
— as he does on appeal — on the fact the memorandum was sent int
| Description | Ruben Silva, Jr. (defendant) stands convicted, following a jury trial, of second degree murder committed for the benefit of or in association with a criminal street gang (Pen. Code,[1] §§ 186.22, subd. (b)(1), (5), 187, subd. (a); count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 2).[2] His motion for a new trial was denied, and he was sentenced to prison for 15 years to life plus two years and ordered to pay restitution and various fees, fines, and assessments. On appeal, we reject defendant’s claims he is entitled to reversal because (1) the trial court failed to clear up the jury’s confusion regarding the elements of aiding and abetting, (2) the trial court erred by instructing with CALCRIM No. 3261, and (3) the jury was inadvertently given a copy of a legal memorandum that addressed the natural and probable consequences doctrine. We agree, however, that the sentence on count 2 should have been stayed pursuant to section 654. Accordingly, we modify the sentence on count 2, but otherwise affirm. |
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