P. v. Neal
Filed 6/26/12 P. v. Neal CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES NEAL,
Defendant and Appellant.
D059315
(Super. Ct.
No. SCD225855)
APPEAL from
a judgment of the Superior Court
of
County, Michael T. Smyth, Judge. Reversed.
A jury
convicted Charles Neal of second degree
murder (Pen. Code, § 187,
subd. (a); count 1),
count 2). The jury determined Neal
committed both offenses for the benefit of a
subd. (b)(1)), and a principal used and discharged a firearm in the crimes,
causing the death of another person (§ 12022.53, subds. (d), (e)). The jury found Neal not guilty of first
degree murder as charged in count 1. The
court sentenced Neal to state prison for a total of 40 years to life,
consisting of 15 years to life for count 1, plus a consecutive 25-year term for
the firearm enhancement on that count.
The court stayed sentencing on count 2.
(§ 654.)
The
prosecution's theory was that Neal's codefendant, Maurice Tucker, was the
shooter and Neal had derivative liability for both crimes as a coconspirator.
committed prejudicial error by instructing the jury on a legally invalid theory
of implied malice second degree murder.
Under California Supreme Court authority, we agree. (People
v. Swain (1996) 12 Cal.4th 593, 601 (Swain);
People v. Cortez (1998) 18 Cal.4th
1223, 1237-1238 (Cortez).) We reverse the judgment.
FACTUAL BACKGROUND
Neal and
Tucker claim membership in two separate but allied criminal street gangs,
O'Farrell Park Banksters (O'Farrell) and Eastside Skyline Piru (Skyline). Stephen Cleveland, the victim, was a member
of Lincoln Park Bloods (Lincoln Park),
a rival gang of O'Farrell and Skyline.
At a rap
music concert in April 2007, there was a fight between Skyline and Lincoln
Park gang members.
Cleveland took part in the
fight.
In June
2007 Neal and his girlfriend, Vanity August, took a trip with Tucker and his
girlfriend.
title="">[3] While away, Neal gave August money to
purchase two prepaid cell phones. Per
Neal's instructions, August activated one of the phones for him, using a fake
name and address and obtaining an out-of-state area code. The other cell phone was for Tucker.
On June 9, 2007, a community celebration
was held in Martin Luther
King Jr. Memorial Park
(the park) in southeast San Diego,
which is bordered on the north by Skyline Drive
and on the east by 65th Street. The park is in territory claimed by the
O'Farrell and Skyline gangs.
Some
gangsters attended the celebration, including Tucker and his friend Joseph
Brown, an O'Farrell member. At some
point in the afternoon, a Cadillac with four male occupants drove slowly by the
park on 65th Street. The men wore white and green clothing, the
gang colors of Lincoln Park. The men looked toward the crowd, which
"started scurrying about kind of hurriedly." Attendees made comments such as, "Here
they go, starting trouble." The
Cadillac eventually drove away.
Within
about 10 minutes, four men dressed in white began descending a hill on foot
toward the park. They were making the Lincoln
Park gang sign.
A group of O'Farrell and Skyline members began running up the hill. The Lincoln Park
members retreated, but the incident ruined the celebration.
Tucker
lived near the park. According to Brown,
at around 5:00 p.m. he and Tucker went
to Tucker's house, where they drank and smoked marijuana in the front yard for
a couple of hours.
title="">[4] Neal showed up later in an Impala. Brown overheard Tucker tell Neal about the
incident at the park, and Neal responded, "Fuck Lincoln and they were
going to go ride." In gang lingo,
the term "ride" means to beat up or kill someone. Tucker and Neal went into the house and
changed into black jeans and black hooded sweatshirts.
Arrow
Morris, Brown's cousin and an O'Farrell gang member, pulled up in a dark green
Suburban with tinted windows. Morris and
Neal spoke and exchanged keys. Brown saw
Morris drive away in the Impala, and Tucker drive away in the Suburban with
Neal in the passenger seat.
Cleveland
was at his home just north of the park on 65th Street,
also in territory claimed by the O'Farrell and Skyline gangs. After dark, at around 8:00 p.m., he walked his girlfriend, Sharnay Robinson, to
her car parked across the street. A dark
green Suburban with tinted windows passed Robinson's car, screeched to a halt
and backed up. Cleveland
said, "What's up" to the driver of the Suburban, and the driver
responded, "What's up," in an agitated and threatening tone. Cleveland
said, "Who is that," and the driver said something like "Tookie
or Tuckie," or perhaps "2 B."
Tucker's nicknames include "Tuck," "Tuck-Bo,"
"Tuck 2 Da," and "Tu 2 Da," and Neal's nicknames include
"Choo-Choo" and "2 B Dat."
Robinson did not recognize the driver, but she believed Cleveland
did because he "started acting nervous."
An extremely tall, thin man in
black clothing immediately exited the passenger side of the Suburban and ran
toward Cleveland. Cleveland
told Robinson to get down. He then ran
toward his house as the man shot several rounds from a handgun in his
direction. Robinson briefly lost sight
of the men, but she saw the shooter run back to the Suburban and reenter the
passenger side, after which the car went south toward Skyline
Avenue. Cleveland
was found mortally wounded in a neighbor's open garage.
Police
found Neal's cell phone about six feet away from where the Suburban had stopped
on 65th Street. The predominant DNA on the phone was likely
from Neal. Police seized Tucker's cell
phone, and discovered there were several "direct connect" calls
between it and Neal's cell phone the evening of the shooting. Further, a string of calls were placed
between Tucker's and Morris's cell phones.
Cleveland's stepfather told
police of a previous incident between Cleveland and Neal.
Neal had
been staying with August at a motel in Chula Vista. He was out the evening of the shooting and
she tried to reach him numerous times on his cell phone, but he did not
answer. At about 9:00 p.m., August got a call from a friend who reported Cleveland
had been shot. August turned on the
television to watch the news, and Neal arrived with a man wearing a dark
colored hooded sweatshirt. August did
not recognize the man. Neal told August
he had lost his cell phone. After 20 to
30 minutes, Neal said he was going to Tucker's house. He left in a large dark colored SUV with
tinted windows. A week later, August was
with Neal when he abandoned the SUV beside a ditch in Spring Valley.
Two days
after the shooting, Brown went to Tucker's house to hang out. Neal was also there. The conversation turned to Cleveland. According to Brown, Tucker said he and Neal
"were driving down 65th Street going towards Skyline Drive," when
they saw Cleveland. Brown "just
assumed [Tucker] was driving."
Tucker said Neal got out of the car and confronted Cleveland, but Neal
"was taking too long so he [Tucker] jumped out and shot . . . Cleveland in
the neck."
title="">[5] As he related the story, Tucker smiled and
laughed. Neal was silent during the
conversation.
A couple of
months after the shooting, Brown met with Tucker after police searched his
house. Tucker said police told him they
found a cell phone at the scene, and Tucker believed the phone belonged to
Neal. Neal was not worried, though,
because it was a "rigged phone," meaning it was listed in someone
else's name.
Robinson
did not get a good look at the shooter's face.
A few months after the shooting, she attended a party and got a
"dark heavy feeling" when she made eye contact with a man called
Tuck-Bo. At trial she identified the man
as Tucker. She believed he was the
shooter based on his height, build and "very dark skin." Tucker is 6 feet 3½ inches tall and thin, and
Neal is 5 feet 9 inches tall and heavier.
Robinson
did get a fairly good look at the driver's face. She did not identify Neal from a photographic
lineup. Before the preliminary hearing,
someone emailed her a photo of Tucker's brother, Marcus Marshall, which
appeared on MySpace. In the photo,
Marshall was wearing a removable metal grill on his teeth. Robinson told two detectives she broke down
crying when she saw the photo, and she was 100 percent sure Marshall was the
driver.
At the
preliminary hearing, Robinson positively identified Marshall from his photo as
the driver. She also testified she was
certain the driver "had metal in his mouth" the night of the
shooting.
At trial,
Robinson testified that when she first saw Marshall's photo she believed he was
the driver because "the same facial structure, the same facial features
matched perfectly with what I [saw] that night." She testified, however, that she could not be
certain Marshall was the driver, but his photo "[l]ooks similar to the
driver." She denied saying she was
100 percent sure Marshall was the driver.
Robinson
conceded that before trial she had never identified Neal. She was asked to describe Neal's face, and
after a lengthy pause she responded, "Wide set and chubby." She testified Neal looked "very
similar" to a drawing she helped create of the driver. She also testified the driver did not have
metal on his teeth, but later in her testimony she did not dispute a
description of the driver as wearing a grill.
There was no evidence Neal ever wore a grill.
In the
opinion of a criminal street gang expert, the shooting was committed in
association with and for the benefit of the O'Farrell and/or Skyline
gangs. The expert explained that in gang
culture "[r]espect is everything," and O'Farrell and Skyline would
consider Lincoln Park's appearance at the park, and the earlier fight at the
rap concert, "disrespectful acts" requiring retaliation. Further, the fastest way for a gang member to
earn respect within his gang is to shoot and kill a rival gang member.
DISCUSSION
I
Count 1: Murder
A
Instructional Error
Neal
contends the jury instructions were materially flawed because they authorized
the jury to convict him on a legally invalid theory, implied malice second
degree murder. Neal did not object at
trial, but we may nonetheless review the instructions because they affected his
substantial rights. (§ 1259;
885, fn. 30.) We review jury
instructions as a whole, in light of the trial record, to determine whether it
is reasonably likely the jury understood a challenged instruction in the manner
claimed. (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
The
prosecution's theory was that codefendants conspired to murder Cleveland, with
Tucker doing the shooting and Neal doing the driving.
but "an uncharged conspiracy may properly be used to prove criminal
liability for acts of a coconspirator."
(People v. Belmontes (1988) 45
Cal.3d 744, 788-789, disapproved of on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "Conspiracy is a specific intent crime
requiring both an intent to agree or conspire and a further intent to commit
the target crime or object of the conspiracy." (People
v. Iniquez (2002) 96 Cal.App.4th 75, 78, fn. omitted.)
"Murder
is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Malice aforethought "may be express or
implied." (§ 188.) " 'It is express when there is
manifested a deliberate intention unlawfully to take away the life of a fellow
creature.' " (Swain, supra,
malice murder, in contrast to express malice, requires instead an intent to
do some act, the natural consequences of which are dangerous to human
life." (Id. at p. 602; People v.
Cravens (2012) 53 Cal.4th 500, 507 [" 'Malice is implied when the
killing is proximately caused by " 'an act, the natural consequences of
which are dangerous to life, which act was deliberately performed by a person
who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.' " ' "].)
A "willful,
deliberate, and premeditated killing" is murder in the
"A willful murder is an intentional murder." (People
v. Moon (2005) 37 Cal.4th 1, 29; People
v. Castaneda (2011) 51 Cal.4th 1292, 1320-1321 [first degree murder may not
be based on implied malice].)
"Second degree murder is the unlawful killing of a human being with
malice, but without the additional elements (i.e., willfulness, premeditation,
and deliberation) that would support a conviction of first degree
murder." (People v. Sarun Chun (2009) 45 Cal.4th 1172, 1181.)
California
recognizes three theories of second degree murder: unpremeditated murder with express malice;
implied malice murder; and second degree felony murder. (Swain,
supra, 12 Cal.4th at p. 601; People
v. Taylor (2010) 48 Cal.4th 574, 623-624.)
In Swain, however, our high
court held that when the target crime of a conspiracy is murder, a finding of
intent to kill is required; a conviction cannot be based on a theory of implied
malice second degree murder. (
The court explained: "The
element of malice aforethought in implied malice murder cases is . . . derived
or 'implied,' in part through hindsight so to speak, from (i) proof of the
specific intent to do some act dangerous to human life and (ii) the circumstance that a killing has resulted
therefrom. It is precisely due to this
nature of implied malice murder that
it would be illogical to conclude one
can be found guilty of conspiring to commit murder where the requisite element
of malice is implied. Such a
construction would be at odds with the very nature of the crime of
conspiracy—an 'inchoate' crime that 'fixes the point of legal intervention at
[the time of] agreement to commit a crime,' and indeed 'reaches further back
into preparatory conduct than [the crime of] attempt' [citation]—precisely
because commission of the crime could never be established, or be deemed
complete, unless and until a killing actually occurred." (Id. at
p. 603.)
Here, the
court instructed the jury with CALCRIM No. 417, titled Liability for
Coconspirators' Acts, as follows:
"A member of a conspiracy is criminally responsible for the crimes
that he or she conspires to commit, no matter which member of the conspiracy
commits the crime. [¶] 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.
This rule applies even if the act was not intended as part of the
original plan."
The court
also instructed the jury with a modified version of CALCRIM No. 416, titled
Evidence of Uncharged Conspiracy, that to convict Neal of murder there must be
proof he intended to and did agree with Tucker or an unidentified coconspirator
to commit murder; at the time of the agreement, Neal and one or more persons
intended that one or more of them would commit murder; and one or more of them
committed at least one overt act in furtherance of the agreement. After enumerating a series of alleged overt
acts, the court added: "
more of the other alleged members of the conspiracy intended to commit murder,
please refer to the separate instructions that I will give on that crime" (Italics added.)
The court
then instructed the jury on the elements of murder, including principles of
implied malice second degree murder. The
court gave the jury a modified version of CALCRIM No. 520, titled First or
Second Degree Murder With Malice Aforethought, as follows: "The defendants are charged in count 1
with murder, in violation of . . . section 187.
To prove that a defendant is guilty of this crime, the People must prove
that: 1, the defendant committed an act
that caused the death of another person; and 2, when the defendant acted, he
had the state of mind called malice aforethought. [¶]
There are two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind required
for murder. [¶] The defendant acted with express malice if he
. . . unlawfully intended to kill. The
defendant acted with implied malice if:
1, he intentionally committed an act; 2, the natural and probable
consequence[s] of the act were dangerous to human life; 3, at the time he
acted, he knew his act was dangerous to human life; and 4, he deliberately
acted with . . . conscious disregard for human life." (Italics added.) Further, the court went on to instruct the
jury that if it found Neal guilty of murder it must determine whether it was in
the first or second degree.
We conclude
the court erred by not tailoring the murder and malice instructions to the prosecution's
theory of derivative conspiracy liability against Neal.
the shooter but the alleged driver, his liability "could have only been
predicated on his liability as a coconspirator." Thus, under Swain, an element of a murder charge against Neal was express
malice. "[E]xpress malice and an
intent unlawfully to kill are one and the same." (People
v. Saille (1991) 54 Cal.3d 1103, 1114, fn. omitted.) While the jury was instructed it must find
intent to kill as the object of the uncharged conspiracy, the jury acquitted
Neal of first degree murder. The
instructions improperly gave the jury the opportunity to proceed to find Neal
guilty of implied malice second degree murder in contravention of
B
As a constitutional matter, a reviewing court may not set
aside a judgment because of instructional error absent prejudice. (Cal. Const., art. VI, § 13.) "Instructional error regarding the
elements of the offense requires reversal of the judgment unless the reviewing
court concludes beyond a reasonable doubt that the error did not contribute to
the verdict." (People v. Sarun Chun, supra,
45 Cal.4th at p. 1201.) "[T]o find
the error harmless, a reviewing court must conclude . . . the jury based its verdict
on a legally valid theory." (
'which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged
offense.' " (People v. Calderon (2005) 129 Cal.App.4th 1301, 1306.)
The People
claim a lack of prejudice because "the jury did not necessarily find him guilty of second degree murder based on a
theory to commit implied malice murder."
The People assert "there was absolutely no evidence of implied
malice, and all of the evidence indicated that [Neal] intended to kill
Cleveland." The People also point
out that the prosecutor consistently argued for first degree murder, and did
not argue implied malice as the prosecution did in Swain. (Swain, supra, 12 Cal.4th
at p. 607.)
The People
do not expressly state any valid theory for a second degree murder conviction
against Neal. We presume the People's
position is that the jury could have found Neal guilty of express malice second degree murder. The jury, however, acquitted Neal of first
degree murder, an element of which is express malice. Moreover, if the jury acquitted on first
degree murder for lack of deliberation, rather than lack of express malice,
second degree murder is still a legally invalid theory.
"whether there exists a viable offense of conspiracy to commit express
malice 'second degree' murder, and if there be such an offense, what is the
applicable punishment." (
Cortez, supra, 18 Cal.4th 1223, resolved the questions. The court held that "all conspiracy to
commit murder is necessarily conspiracy to commit premeditated and deliberated
first degree murder, and . . . all murder conspiracies are punishable in the
same manner as murder in the first degree pursuant to the punishment provisions
of . . . section 182." (
The court explained that the specific intent required to conspire to
commit murder is the functional equivalent of premeditation and deliberation. (Id. at
pp. 1231-1232.) The court also held that
when the target offense of a conspiracy is murder, the court is not to instruct
the jury to determine the "degree" of the murder since the only
possibility is murder in the first degree.
(Id. at p. 1240.)
The People
also claim the jury "was left with no option other than finding [Neal]
guilty of first degree murder," but it "apparently arrived at the
second degree murder verdict through lenity." The People assert that since there may have
been jury lenity, the second degree murder conviction must stand. The People cite People v. Avila (2006) 38 Cal.4th 491 (Avila), which explains:
"As a general rule, inherently inconsistent verdicts are allowed to
stand. [Citation.] For example, 'if an acquittal of one count is
factually irreconcilable with a conviction on another, or if a not true finding
of an enhancement allegation is inconsistent with a conviction of the
substantive offense, effect is given to both.'
[Citation.] Although '
"error," in the sense that the jury has not followed the court's
instructions, most certainly has occurred in such situations, 'it is unclear
whose ox has been gored.'
[Citation.] It is possible that
the jury arrived at an inconsistent conclusion through 'mistake, compromise, or
lenity.' [Citation.] Thus, if a defendant is given the benefit of
an acquittal on the count on which he was acquitted, 'it is neither irrational
nor illogical' to require him to accept the burden of conviction on the count
on which the jury convicted." (
acquittal of one or more counts shall not be deemed an acquittal of any other
count.' "].)
The record
here does not suggest jury lenity. Neal
plausibly asserts the jury may have rejected the argument he was the driver, in
light of Robinson's unequivocal pretrial identifications of Tucker's brother as
the driver, but under the implied malice instruction attributed some
responsibility to Neal because he encouraged Tucker to "ride" on
Lincoln Park, a gang term that means to beat up or murder a rival gang member.
During closing, the prosecution argued, "We know what happened
because Tucker and Neal talk about riding on Lincoln. This is the agreement."
In any
event, the general rule discussed in Avila
applies when a jury renders inherently inconsistent verdicts on two or more
legally valid theories. (See, e.g., Avila, supra,
defendant on rape count, but true finding on rape-murder special circumstance
allegation, did not require reversal of murder convictions on ground of
inconsistent jury verdicts].) Here, the
only legally valid theory was first degree murder, which the jury decided in
Neal's favor. It would not be rational
or logical to require Neal to accept the burden of the second degree murder
conviction since it is legally invalid.
" '[I]t is erroneous to speak of a "crime" of
"conspiracy to commit murder of the
second degree"; "a conspiracy to commit murder can only be a
conspiracy to commit murder of the first degree" [citation]. Similarly, it is unnecessary to label the
crime "conspiracy to commit murder of
the first degree" there is no crime of "conspiracy to commit
murder of the second—or any other—degree"
from which it may be distinguished."
(Cortez, supra, 18 Cal.4th at p.
1241 (dis. opn. of Mosk, J.).)
We conclude
inherent prejudice exists. But for the
instructional errors, the jury would not have convicted Neal of second degree
murder. The conviction is contrary to
law and cannot stand. (See
defendant pleaded guilty to a "nonexistent offense," conspiracy to
commit attempted murder].)
II
Count 2: Shooting at an Inhabited Structure
Additionally,
Neal contends reversal of his conviction on count 1 for instructional error
also requires reversal of his conviction on count 2. Section 246 provides: "Any person who shall maliciously and
willfully discharge a firearm at an inhabited dwelling house [or] occupied
building . . . is guilty of a felony. . . [¶]
As used in this section, "inhabited" means currently being
used for dwelling purposes, whether occupied or not."
The People
agree that since Neal was not the shooter, his liability for count 2 "could
have only been predicated on his liability as a coconspirator." The court instructed the jury as
follows: "To prove that a defendant
is guilty of the crime charged in count 2, the People must prove that: 1, the defendant conspired to commit . . . murder; 2, a member of the conspiracy
committed shooting at an inhabited building to further the conspiracy; and 3,
shooting at an inhabited building was a natural and probable consequence of a
common plan or design of the crime that the defendant conspired to
commit." (Italics added.)
Neal
asserts the court's instructions on second
degree murder and malice allowed the jury to find him guilty of count 2 on
the same theory as count 1, that he conspired to commit implied malice second
degree murder, a legally invalid theory.
The People do not respond to Neal's position. We agree with Neal that prejudicial error
requires reversal since the instructions authorized the jury to find implied
malice second degree murder as an element of count 2.
DISPOSITION
The
judgment is reversed.
McCONNELL, P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
name="_ftn1" title="">[1] Further statutory designations are
also to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Neal and Tucker were tried before the
same jury. As to Tucker, the jury
deadlocked 11 to 1 for guilt. In a
second trial Tucker was convicted of first degree murder and shooting at an
inhabited structure.
