P. v. Brown

Filed 1/19/10 P. v. Brown CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a Judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. Affirmed.

Matthew Alger, under appointment by the Court of Appeal for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Charles Brown appeals his conviction of one count of second degree murder (Pen. Code,  187, subd. (a)), with a true finding that a principal was armed (Pen. Code,  12022, subd. (a)(1))[1]. He contends the trial court erred in failing to instruct on aiding and abetting and his counsel was ineffective for failing to object to hearsay evidence. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendant was charged with the March 1997 shooting death of Bobby Cisneros, a cocaine dealer, whose body was found at defendants house. Prior to the shooting, defendant made arrangements with Cisneross partner to purchase cocaine from Cisneros. After the shooting, witnesses saw defendant and another man fleeing from defendants house. Defendant was arrested in Arkansas in 2007. By information defendant was charged with one count of murder ( 187, subd. (a)), with allegations that he personally used a revolver and a shotgun within the meaning of section 1203.06, subd. (a)(1) and section 12022.5, subd. (a). The information further alleged that a principal was armed with a revolver or a shotgun during the commission of the offense, within the meaning of section 12022, subd. (a)(1).

In March 1997, Eduardo Quiroz lived on East 50th Street near Wall Street in Los Angeles. Quiroz and his friend Cisneros were dealers who sold rock cocaine on Wall Street. Cisneros acquired the cocaine, and Quiroz sold it to their customers. They kept a separate apartment for the drugs. Defendant, who lived at 4161 Wall Street, had been a customer for about two years.

On the morning of March 4, 1997, defendant (who was known to Quiroz as Willy Boy) told Quiroz he wanted to buy half a bird, or a half-kilogram of cocaine for $4,500. Quiroz told him a half a kilogram would cost at least $7,500, and did not believe defendant was serious about making a purchase. A short time later, Quiroz was talking on a pay phone when defendant approached him again and asked whether Quiroz had contacted Cisneros. Defendant had a briefcase with him, told Quiroz he had the money, and wanted to make the purchase.

Quiroz drove to 50th Street, where he met Cisneros driving in the opposite direction. The two of them spoke from window to window, and Quiroz told Cisneros that defendant want to buy a half a bird. Cisneros told Quiroz to stop by his apartment and that if he had the cocaine, Quiroz could sell it to defendant. Quiroz went to Cisneross apartment, and he saw defendants van in the area. Later, Quiroz checked the location where he and Cisneros stored their cocaine and noticed that half of it was gone.

Jesus Cortes knew Cisneros. On March 4, 1997, he was on his way home about 3:00 p.m. when he saw many people, including some of his friends, at the corner of 41st Street and Wall. About an hour before, he had seen Cisneros and defendant at 40th Street and Main, about three blocks away.

Jorge Leon was nine years old at the time of the shooting. He was sitting on the front porch of his house when he saw defendant drive up in his van. Defendant approached his house, which was nearby, and said, I did the best that I could. Defendant went into the house and Leon heard two gunshots. Two black men came running out of the house. One of the men wearing a baseball cap dropped a piece of paper and screamed, lets go! He had a revolver. The two men left in a red truck.

Antoine Brown, who was eight years old at the time, was playing on the roof near defendants house with friends on March 4, 1997. Around 3:00 p.m. he heard gunshots. At the time, Brown told police that before the shots were fired, he heard someone say, Come here, come here man. Fool, fool. Brown knew defendant, who lived in the house where the shooting occurred. Brown saw defendant and another person running out of the house; defendant was carrying a gun.

On March 4, 1997, Tabitha Pritchett spoke to Jamal Webster, who was defendants nephew, in front of defendants house. Webster told her that he and defendant were about to go jack (rob) some Mexicans and that if Pritchett saw defendant with some Hispanics chasing him, she should go home. Webster showed her a gun that was about a foot long. Webster told her that after the robbery, she would not see him for a long time, but that he would give her some money so she could get her hair done.

Los Angeles police detective Wallace Tennelle responded to the scene of the shooting at defendants house at 4161 Wall Street at about 3:15 p.m. In a rear bedroom used by defendant they found Cisneross body lying in the doorway. No weapons were found nearby. He spoke to Pritchett, who told him that Jamal Webster had been planning a robbery with defendant.

Cisneros died from a shotgun wound to the back of his head. He had no defensive wounds.

Quiroz identified defendant for police from a six-pack photo array.

The jury found defendant guilty of second degree murder, found not true the allegation he personally used a firearm, and found true the allegation that a principal was armed with a firearm.

DISCUSSION

I. AIDING AND ABETTING INSTRUCTION.

A. Factual Background.

The trial court instructed the jury on theories of first degree murder and first degree felony murder (committed during the course of robbery), and that all other murders were second degree murder. The jury was further instructed that defendant could be guilty under the felony murder theory even if another person committed the act resulting in death. The only instruction on aiding and abetting was given in connection with the principal armed with a firearm instruction and provided, A person is a principal in a crime if he or she directly commits the crime or if he or she aids and abets someone else who commits the crime.

During deliberations, the jury asked In the standard for second degree murder, can the defendant be found guilty even if another person did the act that resulted in the death? The court responded, yes.

B. Discussion.

Defendant contends that because the jury convicted him of second degree murder, but found that he did not use a firearm in the commission of the offense and that a principal did use a firearm, the only way he could have been guilty of second degree murder would have been on an aider and abettor theory. He asserts that, because the court failed to instruct the jury on the legal principles of aider and abettor liability, the trial court effectively permitted the jury to convict him of second degree murder without determining whether the prosecution had established all of the elements of aiding and abetting.

An aider and abettor can be held liable for criminal conduct in two ways. First, an aider and abettor with the necessary mental state is guilty of the intended crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) To prove liability under this first type, the prosecution must show that the defendant acted with knowledge of the criminal purpose of the perpetration and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also for any other offense that was a natural and probable consequence of the crime aided and abetted. [Citation.] (McCoy, supra, at p. 1117.)

[E]ven in the absence of a request, a trial court must instruct on general principles of law applicable to the case, and necessary for the jurys understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Defendant is correct that if the jury found him guilty of second degree murder, it most likely did so on an aider and abettor theory, and that the trial court therefore erred in failing to give an aider and abettor instruction. However, we find the error harmless beyond a reasonable doubt because there was substantial evidence that defendant aided and abetted the crime. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Hardy (1992) 2 Cal.4th 86, 192 [failure to instruct jury on aider and abettor theory harmless beyond a reasonable doubt].) Defendant sought to purchase one-half a kilogram from Cisneros; Quiroz arranged the sale; defendants co-perpetrator informed Pritchett of their intent to rob some Hispanics, establishing defendants knowledge of Websters criminal purpose and intent to facilitate it; one-half of Cisneross supply of cocaine was missing, indicating the sale was completed; two men were seen running from defendants house with a weapon, establishing that defendant was present with the perpetrator; and the victims injuries indicated the perpetrator had the intent to kill, supporting a second-degree murder conviction.

II. INEFFECTIVE ASSISTANCE OF COUNSEL.

Defendant contends that his trial counsel was ineffective for failing to object to the admission of Jamal Websters hearsay statements. He contends the statements were not admissible as statements of a co-conspirator because they were not in furtherance of the conspiracy; furthermore, only the portion of the statement that was against Websters penal interest was admissible under the hearsay exception for statements against penal interest.

A. Factual Background.

Defendant moved for a new trial based upon ineffective assistance of counsel, arguing his trial counsel failed to object to numerous instances of hearsay testimony from witnesses Quiroz, Antoine Brown, Pritchett, and Detective Tennelle. At the hearing on the motion, the court stated that Websters statement was admissible under a hearsay exception as the statement of a co-conspirator. The court denied defendants motion, finding no prejudice in the admission of the statements; the court further found a habeas proceeding was the appropriate vehicle to determine whether counsels failure to object had a tactical basis.

B. Discussion.

The right to effective assistance of counsel derives from the Sixth Amendment right to assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-694; see also Cal. Const., art. I, 15.) To demonstrate ineffective assistance, defendant must show (1) counsels conduct was deficient when measured against the standards of a reasonably competent attorney, and (2) prejudice resulting from counsels performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Mayfield (1997) 14 Cal.4th 668, 784.) Prejudice is shown where there is a reasonable probability, but for counsels errors, that the result of the proceeding would have been different. (In re Harris (1993) 5 Cal.4th 813, 832-833.)

Our review of counsels performance is deferential, and strategic choices made after a thorough investigation of the law and facts are virtually unchallengeable. (In reCudjo (1999) 20 Cal.4th 673, 692.) Further, In some cases . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. [Citation.] Otherwise, appellate courts would become engaged in the perilous process of second-guessing. (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted.) Where the record sheds no light on the purpose behind counsels acts or omissions, the question of ineffective assistance of counsel more appropriately is resolved by a petition for writ of habeas corpus, which permits the opportunity to present additional evidence regarding trial counsels reasons for acting or omitting to act. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Pope, supra, 23 Cal.3d at p. 426.)

Here, because counsel did not object to the line of questioning which elicited Jamal Websters statements, the evidentiary issue was forfeited and not preserved for appeal. (People v. Hinton (2006) 37 Cal.4th 839, 893, fn.19.) Further, on the record before us, we cannot determine whether trial counsels lack of objection had a reasonable tactical basis. Therefore, a petition for habeas corpus is the appropriate vehicle for a determination of whether counsels performance at trial was defective and defendant was prejudiced thereby.

DISPOSITION

The judgment of the superior court is affirmed.

ZELON, J.

We concur:

WOODS, Acting P. J.

JACKSON, J.

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[1] All statutory references herein, unless otherwise noted, are to the Penal Code.