v. Perez
Filed
7/3/12 P. v. Perez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY MANUEL
PEREZ,
Defendant and Appellant.
F062339
(Super. Ct. No. BF131156A)
APPEAL
from a judgment of the Superior Court of
Deborah
L. Hawkins , 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, Kathleen A. McKenna,
Barton Bowers and William K. Kim, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
Following a jury
trial, appellant Anthony Manuel Perez was convicted of two counts of
officer (counts 1 & 2), two counts of assault upon a peace officer with
a semiautomatic firearm (counts 3 & 4), two counts of unlawful possession
of a firearm by a criminal street gang
member (counts 7 & 11), and one count of
8). With respect to counts 1, 2, 3, 4,
7, and 8, the jury found the offenses were committed for the benefit of a
criminal street gang within the meaning of Penal Code section 186.22,
subdivision (b)(1).
name="_ftnref1" title="">[1] With respect to counts 1
through 4, the jury found appellant was a principal in the offenses and at
least one principal personally discharged a firearm in committing the offenses
within the meaning of section 12022.53, subdivision (e)(1). However, the jury found appellant did not
personally discharge a firearm in committing the offenses within the meaning of
section 12022.53, subdivision (c).
Appellant received a total determinate sentence of 47 years 8 months,
plus a total indeterminate sentence of 30 years to life.
On appeal,
appellant contends that (1) the trial court prejudicially erred in instructing
the jury on uncharged-conspiracy and aiding-and-abetting theories of liability,
(2) insufficient evidence supports the section 186.22 and section 12022.53
enhancements because there was insufficient
evidence the crimes were gang related, (3) section 12022.53 violates equal
protection, and (4) the abstract of judgment must be amended to award appellant
additional presentence credits. We agree
with appellant’s last contention, which respondent concedes, and order the
abstract of judgment to be amended accordingly.
In all other respects, the judgment is affirmed.
On February
20, 2010, Bakersfield Police Officer Paul Yoon was working with his partner,
Rudy Berumen. Their shift was from 1:00
p.m. until 11:00 p.m. The particular
part of town they patrolled was “[c]ommonly described as Old Kern†and defined
partly by the following streets:
“Kentucky, East Truxtun, Beale Avenue, [and] Mount Vernon.â€
Around
9:00 p.m., Officer Yoon, who was driving the patrol car, observed a blue Honda
Civic travelling south on River Boulevard from Bernard Street. Once he got behind the Honda, Officer Yoon
noticed it had paper plates instead of a regular vehicle plates and it did not
have a temporary DMV registration tag.
As a result of
these observations, Officer Yoon activated his red and blue lights to conduct a
traffic stop. The Honda did not pull
over immediately but slowed and continued about a block before it finally
pulled over to the right at Beale Avenue and Monterey Street, just in front of the
AM/PM gas station.
Officers
Yoon and Berumen exited their patrol car and approached the Honda. After Officer Yoon had taken about two steps
towards the car, it accelerated and fled southbound on Beale Avenue at a high
rate of speed.
The
officers ran back to their patrol vehicle and started to pursue the Honda,
which continued to travel at a high rate of speed. The Honda ran a red light and made a sharp
left turn to go eastbound on East Truxtun Avenue. A hundred yards later, the Honda made a right
turn from East Truxtun Avenue to go southbound again on Beale Avenue.
As
soon as the Honda turned off on Beale Avenue, Officer Yoon positioned the
patrol car directly behind the Honda.
The officer then heard a gunshot or loud pop and saw the lower portion
of the back windshield shatter outwards.
The portion that shattered was at the bottom center of the window where
the third brake light would be.
The
first shot was followed by a second shot which shattered the entire rear window
of the Honda. Officer Yoon realized that
he and Officer Berumen were actively being shot at and started taking evasive
actions with the patrol car, veering back and forth in an attempt to turn the
patrol car into a moving, rather than a stationary, target.
As Officer Yoon
maneuvered the patrol car, shots continued to be fired from the Honda. The third and fourth shots came as they were
continuing southbound on Beale Avenue to East California Avenue. Officer Yoon recalled a total of four shots
were fired at him between East Truxtun and East California Avenues.
Officer Yoon was
unable to see who fired the first shot.
However, when the second shot was fired, he was “able to see the muzzle
flash coming over the back of the vehicle right by the third brake light or
middle brake light†The rear passenger
also appeared to fire the third and fourth shots. Officer Yoon explained: “I could see him looking over and turning his
body around and aiming down the sight of the pistol and pointing directly at
our patrol vehicle as it was firing.â€
When the Honda
turned left from Beale Avenue onto East California Avenue, it did not stop at
the stop sign. From East California
Avenue, the Honda turned right onto South Owens Street, after which it made an
immediate left to go eastbound in a small alley on the south side of East
California Avenue. As the Honda was
making all these turns, it was going at a high rate of speed, causing the car
to skid and fishtail. The lights on the
Honda were also turned off after it entered the alley.
Officer Yoon
recalled that at least two shots were fired from the Honda when they were
travelling through the alley. The Honda
eventually turned out of the alley and started travelling southbound on Dr.
Martin Luther King, Jr. (MLK) Boulevard.
After the Honda
turned onto MLK Boulevard, it made an immediate right turn to go westbound on
East Eleventh Street. The Honda began to
fishtail and lose traction during the turn.
The Honda then made a quick left turn to go south on Clyde Street.
After turning
onto Clyde Street, the Honda came to a stop.
Three people exited the vehicle―the driver, the right front
passenger, and the rear passenger―and fled on foot. The front and rear seat passengers ran
westbound into a residential area, while the driver ran the opposite direction,
running eastbound into another residential area. Officer Yoon started chasing after the driver
but eventually lost sight of him.
Officer Berumen
fired his weapon when he saw the two passengers running. They both continued running. Officer Berumen followed them for awhile and
then stopped to wait for other units to arrive.
On February 20,
2010, at 9:32 p.m., Jeffrey Cecil, a crime scene technician with the
Bakersfield Police Department, was called out to East Eleventh and Clyde
Streets to process the crime scene. Among
other things, Cecil found a black diaper bag outside the Honda. The bag contained “a black ski mask that had
holes for the eyes and the mouth.†In
addition, the bag contained glass particles and “a gold colored mask, a red
colored mask, some binoculars, and a [loaded, Norinco] model 212 nine
millimeter handgun.â€
Cecil searched
the interior of the Honda and found a number of items of significance,
including five pairs of work gloves in various colors. Cecil also found a police radio scanner on
the front passenger’s seat. When the
radio was on, Cecil could hear it was tuned to “BPD channel one†which was “the
main police channel for the east side,†the area they were in.
Cecil
located three shell casings inside the Honda.
One was on the rear seat on the passenger’s side, another was on the
rear seat on the driver’s side, and one was underneath the front passenger’s
seat. Cecil found an additional shell
casing inside the black diaper bag.
These shell casings were all nine-millimeter in caliber and had the same
brand logo (i.e., “FCâ€). Bullet
fragments were also found in the trunk.
Paula
Herrera testified she had known appellant for five years and the two of them
were romantically involved. On February
25, 2010, she was driving with appellant in her car when police conducted a
traffic stop and found a firearm in her car.
On
February 24, 2010, Herrera had been watching a news program with appellant when
a story came on about the police pursuit of the Honda. Appellant told Herrera that he knew who was
involved in it. Herrera claimed she
could not recall telling police that appellant started laughing when the news
story came on.
On
February 24, 2010, around 10:30 a.m., Herrera sent a text message about
appellant to a friend. The text read: “He shot at a cop over the weekend, he on the
run, so we will see what happens with him.â€
Bakersfield
Police Officer Paul Bender testified that on February 25, 2010, he was on duty,
conducting surveillance at an address on Virginia Avenue. During the surveillance, he started following
a vehicle and then conducted a traffic stop on Eureka Street. Before initiating the traffic stop, Officer
Bender observed the vehicle was occupied by a male in the front passenger’s
seat (appellant) and a female driver (Herrera).
At one point, Officer Bender passed the vehicle and noticed appellant
had his seat reclined all the way back and would not look at the officers when
they passed.
Before
approaching the vehicle, Officer Bender saw appellant move his arms towards his
waistband or lap area and then bend over as if he were placing an object under
the seat. As a result, Officer Bender
told his partner, Officer Cooley, to watch appellant. Officer Bender walked up and contacted
Herrera. Herrera immediately turned her
body towards the officer, gestured with her hand, moving her index finger back
and forth, and said appellant had a gun.
The officers
took appellant into custody and searched the car. As Officer Bender was taking appellant into
custody, appellant said, “I fucked up again.
Yeah, I had a gun. My
fingerprints are on it. But it is not my
gun.â€
Under the front
passenger’s seat, the officers found a black Smith and Wesson, nine-millimeter
semiautomatic pistol. It was loaded with
nine rounds of Federal ammunition. The
abbreviation that appears on Federal casings is “FC, like Federal
Cartridge.â€
In
the glove compartment, Officer Bender found a photograph of appellant with
Robert Hurtado, whom the officer knew to be a gang member. Appellant and Hurtado had their hands in the
shape of the letter “V.†Based on his
experience and training, Officer Bender knew the handsign stood for the Varrio
street gang.
After
the traffic stop, Officer Bender conducted a search of appellant’s
residence. Officer Bender testified as
to what he found: “There was a blue
baseball cap with the letters KC which is significant because it stands for
Kern County with a variety of street names both Hispanic and Black. Also there was [sic] some additional photographs of [appellant] throwing gang
signs. And there was a notebook seized
with some gang writing in it.â€
Dianna
Matthias, supervising criminalist of
the Kern County Regional Criminalistics Laboratory, testified as a ballistics
expert for the prosecution. Matthias
described the testing she conducted on the subject Honda. She opined that two holes found in the rear
back deck area of the car were caused by gunshots. She further opined that “the person who shot
those two shots in the vehicle was situated in the rear seat of the
vehicle.â€
Matthias
tested three shell casings and the model 212 Norinco nine-millimeter
semiautomatic pistol. She concluded all
three casings were fired by the Norinco pistol.
She also determined the same Norinco pistol fired two casings recovered
from another crime scene on January 24, 2010.
Bakersfield
Police Detective Richard James Dossey, Jr., was assigned as the lead
investigator of the February 20, 2010 incident.
The three suspects he developed were appellant, Jaime Aguirre and Juan
Oregon.
title="">[2]
Detective Dossey
spoke with Herrera. She told the
detective that appellant “was watching the newscast and started laughing when
the news broke in about the officer involved shooting incident.†Herrera also told Detective Dossey that she
was unaware appellant was carrying a firearm until the point the car stop was
initiated, at which time she saw appellant pull the firearm out of his
waistband and place it under the front passenger’s seat where he was
sitting.
Detective Dossey
and his partner, Detective Moore, interviewed appellant. During the first interview, appellant
maintained that he was home with his mother all night on Saturday, February 20,
2010. However, during a second interview
initiated by appellant, appellant admitted he was in the Honda and was the
right front passenger. He identified
Oregon as the driver, and Aguirre as the rear seat passenger. Appellant denied being the shooter and
identified Aguirre as the shooter.
When asked about
the black bag, appellant said he did not remember who had it or whether he
touched it, but that he “maybe†touched it.
When asked what was in the bag, appellant said there was a BB gun and
something else, but he could not remember what because he was drunk at the
time.
When Detective
Moore told appellant the gun in the bag turned out not to be a BB gun,
appellant responded: “No there was,
there was … but the BB gun got away. I
left it at the house. At my pad.†When asked if the black bag was at his house,
appellant replied: “No they brung
it. Cause they came to the house when we
were drinking.â€
Appellant stated
his fingerprints and DNA were “probably†on the gun found in the black bag
because he “might’ve touched it like a stupid ass.†But he denied firing the gun out of the back
window of the Honda during the police pursuit.
Detective Dossey
also testified regarding his training and experience investigating vehicle
theft, theft in general, robbery, and other crimes of violence. Detective Dossey testified that a key ring
with 10 shaved keys was found inside the Honda.
The detective explained what shaved keys were and how they could be used
to start ignitions other than the ones for which they were primarily
designed.
Detective Dossey
testified that, in the gang context, he had seen individuals “use a stolen
vehicle to be undetectable to law enforcement when they commit their violent
crimes or their crimes of violence against the public.†The detective explained: “They will generally … select a car, steal
the car and use it to commit the crime, therefore, to keep it undetectable and
no way of tying it back to them.â€
Detective Dossey testified that other items seized during the
investigation in this case, such as the masks, binoculars, and firearm, would
be similarly useful to committing crimes of theft or violence.
In
addition to the gloves found in the Honda, which, according to Detective Dossey
“were spread out throughout the car[,]†the police found a black T-shirt, a
blue beanie, and a black baseball cap with the white letter “T†on the
bill. Ten .45-caliber rounds were also
recovered from the trunk.
Juan
Carlos Alaman testified that he was the owner of the Honda and that someone
took the car without his permission on February 11, 2010.
Christian
Ramirez testified he was robbed by gunpoint on January 24, 2010. There were three robbers; appellant was not
one of them. Ramirez identified two of
the robbers as Joseph Gonzales and Aguirre, appellant’s confederate in the
instant case.
According to
Ramirez, two guns were involved in the robbery.
Aguirre had a black, nine-millimeter gun, and the other gun was a small
chrome gun. The robbers fired at Ramirez
when he tried chasing them in the parking lot.
Police came afterwards and picked up the shells. Matthias’s testimony, discussed above,
established that the Norinco pistol found in the black diaper bag in the
instant case was the same gun that fired shell casings collected in the investigation
of the January 24, 2010 robbery.
evidence
Officer Brent
Stratton testified as a gang expert and described the Varrio Baker criminal
street gang in Bakersfield. According to
his testimony, there are in excess of 300 documented members of the gang in
Bakersfield, and their primary activities are murder, assault with a firearm,
firearm possession, robbery, narcotics sales, burglaries, and carjackings.
Officer
Stratton opined that appellant and his two confederates―Aguirre and
Oregon―were active members of the Varrio Baker gang. Presented with a hypothetical based on the
facts of this case, Officer Stratton opined that the conduct described “would
be done in association with and for the benefit of the Varrio Baker criminal
street gang.†Officer Stratton
explained:
“The presence of the Varrio Baker gang
members, the … different types of crimes that were committed which, in my
opinion, are primarily activities of the criminal street gang. The type of clothing suggested, the color of
the clothing in your hypothetical. As
well as the presence of other things, such as binoculars, scanners, firearms
and masks, which in and of themselves may be benign. However, the presence of them together, given
the totality of the circumstances, in my opinion makes it more significant in a
gang context. Because of all those
factors, it would help me to formulate my opinion that this was done in
association with and for the benefit of the Varrio Baker criminal street
gang.â€
Officer
Stratton explained that the hat with a “T†on it was significant because “it
could stand for Traviesos, … a subset of the Varrio Baker criminal street
gang.†The blue colored beanie was also
significant because blue is the color associated with the gang.
Officer
Stratton further testified as to the gang-benefit of the conduct:
“Not only does it enhance each gang
member’s reputation on their own, I believe it enhances the lawless and
notorious reputation of the gang as a whole.
I believe that the attempted escape or shooting of an officer would
facilitate that escape which, for lack of a better word, helps them to live to
see another day, continue criminal activities.
I believe that respect in a gang culture is huge and I believe the gang
member gains respect for―amongst their gang, amongst their peers, by
showing a willingness to take on law enforcement. And I believe that it would enhance their
reputation within the gang. And as I
stated earlier, would enhance the reputation of the gang as a whole as a
violent and lawless notorious organization.â€
error
Appellant claims a number of prejudicial
errors occurred in the trial court’s instructions on the uncharged-conspiracy
and aiding-and-abetting theories of liability relied on by the
prosecution. We find none of his claims
persuasive.
A. Natural and probable consequences
doctrine
One of the theories under which appellant was
prosecuted for the attempted murders was that he joined a conspiracy to commit
robbery or assault, and that attempted murder was a natural and probable
consequence of the conspiracy. The trial
court, over the defense’s objection, instructed on this theory pursuant to
CALCRIM No. 416 (evidence of uncharged conspiracy)
coconspirators’ acts).
name="_ftnref4" title="">[4]
Appellant, relying on People v. Baker (1999) 74 Cal.App.4th 243 (Baker), argues the court’s conspiracy instructions presented the
jury with an invalid theory of attempted felony murder. In Baker,
the defendants were charged with murder, attempted murder, assault with a
deadly weapon, conspiracy to commit assault with a deadly weapon, and
residential burglary. (
The defendants claimed the instruction presented to the jury on the
theory of conspiracy felony murder was legally insufficient, as assault with a
deadly weapon was not one of the listed felonies in section 189 that governs
the felony murder rule. (
not list either conspiracy or attempted assault as the basis for criminal
liability under that code section. Thus,
there is no crime of attempted felony murder based upon conspiracy to commit an
assault.â€
We find Baker
inapposite and agree with respondent that the trial court did not instruct
the jury on a felony-murder theory of attempted murder but properly instructed
the jury as to the natural and probable consequences doctrine under a valid
conspiracy theory. Under this theory and
pursuant to CALCRIM Nos. 416 and 417, the prosecution was required to establish
that appellant formed an agreement with Aguirre or Oregon (or both) to commit
robbery or assault, committed one of the enumerated overt acts, and that the
attempted murder of a police officer was the natural and probable consequence
of the conspiracy itself. The
instructions were correct. Under a
conspiracy theory, each conspirator is responsible for everything done by his
coconspirators, including the natural and probable consequences of the
conspiracy. (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.)
In addition to claiming the conspiracy
instruction presented the jury with an invalid theory of attempted felony
murder, appellant argues the natural and probable consequences doctrine is
inapplicable to attempted murder because the doctrine does not require proof of
specific intent to kill. Attempted
murder requires express malice (i.e., specific intent to kill), not implied
malice. (People v. Collie (1981) 30 Cal.3d 43, 62.) Appellant suggests that the natural and
probable consequences doctrine is a form of implied malice because a
coconspirator need not have the specific intent to kill.
Our courts, however, have held that the
natural and probable consequences doctrine in aiding and abetting situations
can support a conviction of attempted murder.
(See People v. Prettyman
(1996) 14 Cal.4th 248, 262-263 (Prettyman).) The specific intent necessary for conviction
of an aider and abettor is not “the specific intent to kill, but the intent to
‘encourage and bring about conduct that is criminal.’†(People
v. Olguin (1994) 31 Cal.App.4th 1355, 1379 [rejecting implied malice
arguments for aider and abettor liability].)
As discussed in People v. Medina (2009) 46 Cal.4th 913, it is quite foreseeable
that a gang-related assault will result in murder or attempted murder, even if
the aider and abettor does not know the principal is armed. “‘A person who knowingly aids and abets
criminal conduct is guilty of not only the intended crime [target offense] but
also of any other crime the perpetrator actually commits [nontarget offense]
that is a natural and probable consequence of the intended crime. The latter question is not whether the aider
and abettor actually foresaw the
additional crime, but whether, judged objectively, it was reasonably foreseeable.
[Citations.]’†(
Similar principles govern the vicarious liability
of coconspirators.
“‘“The general rule is well settled
that where several parties conspire or combine together to commit any unlawful
act, each is criminally responsible for the acts of his associates or
confederates committed in furtherance of any prosecution of the common design
for which they combine....
his confederates, which follows incidentally in the execution of the common
design as one of its probable and natural consequences, even though it was not
intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and
probable effect of the wrongful act specifically agreed on, so that the
connection between them may be reasonably apparent, and not a fresh and independent
product of the mind of one of the confederates outside of, or foreign to, the
common design.â€â€™ [Citations.]†(Prettyman,
supra, 14 Cal.4th at pp. 260-261; see also
[“The challenged instruction correctly states the long-settled law of
conspiracy. [Citations.] As we
explained regarding the analogous situation of aiding and abetting liability …,
‘[i]t is the intent to encourage and bring about conduct that is criminal,
of the target offense, which … must be found by the jury.’â€].)
Appellant cites
no published case holding that the natural and probable consequences doctrine
is analogous to or a form of implied malice.
There are, however, “a number of California cases which hold murder or attempted murder can
be a natural and probable consequence of [aiding and abetting a] robbery. [Citations.]â€
(People v. Cummins (2005) 127
Cal.App.4th 667, 677.) We similarly
conclude that the jury was correctly instructed that appellant could be found
guilty of attempted murder under a conspiracy theory of liability if it found
the natural and probable consequence of the uncharged conspiracy to commit
robbery or assault was the attempted murder of a police officer.
B. Evidence of uncharged conspiracy to
commit robbery
Appellant contends there is insufficient
evidence to support the theory that he was guilty of attempted murder based on
a conspiracy to commit robbery. He
asserts there was no evidence (only “mere speculationâ€) of an agreement to
commit a robbery. Accordingly, he argues
the jury should not have been instructed on this theory.
“[A] trial court in a criminal case is
required―with or without a request―to give correct jury
instructions on the general principles of law relevant to issues raised by the
evidence.†(People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)
A conspiracy may be found where two or more
people agree to commit a crime, they specifically intend both to agree and to
commit the crime, and one of them performs an overt act in furtherance of their
agreement. (People v. Austin (1994) 23 Cal.App.4th 1596, 1603, disapproved on
another ground in People v. Palmer
(2001) 24 Cal.4th 856.) The agreement may be proved by circumstantial evidence,
without showing a meeting or an express or formal agreement. (People
v. Zamora (1976) 18 Cal.3d 538, 559.)
The agreement may be inferred from the defendants’ conduct in mutually
carrying out an illegal purpose, the nature of the acts committed, the
relationship of the parties, and the interests of the alleged
conspirators. (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12,
20.) An inference of a conspiracy may
also be supported by, though not exclusively based on, the defendants’
membership in the same gang. (
“[E]vidence of conspiracy may be admitted even if the defendant is not
charged with the crime of conspiracy.†(
1060, 1134 (Rodrigues).)
“Once there is proof of the existence of the
conspiracy there is no error in instructing the jury on the law of
conspiracy. [Citation.]†(Rodrigues,
supra, 8 Cal.4th at p. 1134.) “To determine whether there was sufficient
proof of a conspiracy in this case, we apply the following rules. ‘Although the existence of the conspiracy
must be shown by independent proof [citation], the showing need only be prima
facie evidence of the conspiracy.
[Citation.] The prima facie
showing may be circumstantial [citation], and may be by means of any competent
evidence which tends to show that a conspiracy existed. [Citation.]’
(People v. Jourdain [(1980)
111 Cal.App.3d 396,] 405.)†(
“Evidence is sufficient to prove a conspiracy to commit a crime ‘if it
supports an inference that the parties positively or tacitly came to a mutual
understanding to commit a crime.
[Citation.] The existence of a
conspiracy may be inferred from the conduct, relationship, interests, and
activities of the alleged conspirators before and during the alleged
conspiracy. [Citations.]’†(Id.
at p. 1135.)
The evidence here was sufficient to support
instructing on conspiracy to commit robbery as a theory of liability. Appellant, Aguirre, and Oregon were members
of the same gang. The gang expert
testified that robbery was one of the primary activities of their gang. The three men were travelling together in a
stolen vehicle, inside which police found 10 shaved keys, multiple pairs of
cotton gloves, and a functioning police scanner specifically tuned to the
channel for the area where they were driving.
After they abandoned the Honda, police recovered a black diaper bag
containing three masks, binoculars, and a loaded, nine-millimeter semiautomatic
firearm.
title="">[5]
We find the foregoing circumstances, considered together, were
sufficient to make a prima facie showing of a conspiracy to commit robbery and,
therefore, the trial court did not err by instructing on this theory.
C. Validity of uncharged conspiracy as
theory of criminal liability
Appellant claims that, as a matter of law,
uncharged conspiracy is not a valid theory of criminal liability in California,
and, therefore, the trial court erred in giving CALCRIM Nos. 416 and 417. Appellant’s claim is contrary to established
case law.
For more than a century, our Supreme Court
has held that defendants may be convicted as principals to crimes in their role
as conspirators. (See
see also In re Hardy (2007) 41
Cal.4th 977.) “It is long and firmly
established that an uncharged conspiracy may properly be used to prove criminal
liability for acts of a coconspirator.â€
(People v. Belmontes (1988) 45
Cal.3d 744, 788, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Nonetheless, appellant argues at length that
uncharged conspiracy is not a proper theory of liability in this case. Specifically, he notes that section 31
the crime and those who aid and abet in the commission of the crime. Appellant acknowledges that a number of cases
in California have held contrary to the express language of section 31,
allowing conspiracy to form a legal theory of criminal liability. Appellant essentially asks this court to
overlook case precedent, and adhere to the language of section 31, rejecting
conspiracy as a theory of criminal liability.
Our Supreme Court has recently declared
without reservation that section 31 forms the basis for criminal liability
based on conspiracy. In
others to commit a felony is guilty as a principal. (§ 31.)
Thus, if petitioner conspired with others to kill the victims for
financial gain, he is as guilty of their murders as the person who actually
stabbed them. [Citation.]†(Id.
at pp. 1025-1026.)
We reject appellant’s claim under
(1962) 57 Cal.2d 450, 455, and find no error in the trial court’s conspiracy
instructions.
D. CALCRIM
No. 400
Relying on People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), People v. Samaniego
(2009) 172 Cal.App.4th 1148 (Samaniego),
and People v. Nero (2010) 181 Cal.App.4th
504 (Nero), appellant contends the
trial court prejudicially erred when it instructed on aiding and abetting under
CALCRIM No. 400
name="_ftnref8" title="">[8] because that instruction states an aider and
abettor is “equally guilty†of the crime committed by the direct perpetrator
even though an aider and abettor can also be guilty of a crime that is a lesser
offense of the direct perpetrator’s crime.
Initially, we address the issue of
forfeiture. Relying on
1148, respondent suggests appellant’s challenge to CALCRIM No. 400 was
forfeited by the absence of contemporaneous objection. We are not persuaded. Samaniego
concluded that a challenge to CALCRIM No. 400 was not preserved for direct
review because modification or clarification had not been sought below. (Samaniego,
at p. 1163.) We differ with
forfeiture. A defendant’s claim that an
instruction misstated the law or violated his due process right “is not of the
type that must be preserved by objection.â€
(People v. Smithey (1999) 20
Cal.4th 936, 976, fn. 7; see also § 1259.)
We believe People v. Flood
(1998) 18 Cal.4th 470, 482, footnote 7, and People
v. Smithey, supra, 20 Cal.4th at page 976, footnote 7, necessitate the
conclusion that the instructional challenge presented here is cognizable
despite the absence of contemporaneous objection.
As the court in Samaniego explained, the now superseded version of CALCRIM No. 400
given in this case is generally an accurate statement of law regarding an aider
and abettor’s liability, but should be modified in those “exceptional casesâ€
where the jury could be misled because various codefendants may have acted with
different mental states in committing the charged crimes. (Samaniego,
supra, 172 Cal.App.4th at pp. 1163-1165.) In Samaniego,
where two victims were killed in a gang-related shooting and there was no
evidence as to who fired the fatal shots, the court held it would potentially
be misleading under those particular facts to give the jury CALCRIM No. 400
without modification or clarification of the words “equally guilty†to properly
assess each defendant’s individual mental state. (Samaniego,
at pp. 1164-1165.) In so holding, the
court reviewed McCoy,
that in cases involving accomplices charged with specific intent offenses, the
jury must separately determine each codefendant’s mental state and may convict
an accomplice of a greater offense than the actual perpetrator under an aiding
and abetting theory of liability. (
be convicted of a lesser offense than the perpetrator as well, “if the aider
and abettor has a less culpable mental state.â€
(Samaniego,
Nero, supra, 181 Cal.App.4th 504 essentially followed the holding of
cases involving “unexceptional circumstances†where the facts showed jury
confusion regarding the instructions on aider and abettor liability and lesser
and greater mental states. (
court in Nero reached the conclusion
that the jury was misinstructed and misled by the “equally guilty†language of
the precursor to CALCRIM No. 400 (CALJIC No. 3.00) based on the facts of that
case, which showed the jury had asked several times whether it could convict
the defendant’s sister as an aider and abettor of a lesser crime than the
charged murder committed by the defendant and the court merely reread CALJIC
Nos. 3.00 and 3.01. (
pattern instruction be modified to address the risk of confusion. (Id.
at p. 518.)
title="">[9]
The applicable test for assessing prejudice
in this instance is the Chapman
standard. (Chapman v. California (1967) 386 U.S. 18, 24; Samaniego, supra, 172 Cal.App.4th at p. 1165; Nero, supra, 181 Cal.App.4th at pp. 518-519.) “Under that test, an appellate court may find
the error harmless only if it determines beyond a reasonable doubt that the
jury verdict would have been the same absent the error. [Citation.]â€
(Samaniego, supra, 172
Cal.App.4th at p. 1165.)
Appellant contends the
because he “was seated in the front seat of the car and did not shoot at the
officer.†Thus, “[t]he jury could have
found that, even if co-defendant Aguirre had the intent to kill …, appellant,
who was merely a passenger in the car, did not.†Appellant suggests that under the “equally
guilty†language of CALCRIM No. 400, the jury would have necessarily found him
guilty of attempted murder as an aider and abettor even if he, unlike Aguirre,
did not intend to kill the officers.
Contrary to appellant’s focus solely on the
“equally guilty†language of CALCRIM No. 400, the jury was not given such
instruction in a vacuum. The court also
read CALCRIM No. 401.
name="_ftnref10" title="">[10]
By its plain language, CALCRIM No. 401 advised the jurors that appellant
could not be found guilty of aiding and abetting a crime unless the direct
perpetrator committed that crime, appellant knew of the direct perpetrator’s
intent to commit the crime, appellant shared the same intent as the direct
perpetrator, and before or during the commission of the crime, appellant did in
fact aid and abet the perpetrator in committing the crime. Based on the elements in CALCRIM No. 401, if
appellant was found not to be an actual perpetrator, but found to be only involved
in the crimes while having a less culpable mental state than the actual
perpetrator, he could not have been held liable as an aider and abettor (
560) because “[t]here must be proof that the accused not only aided the actor
but at the same time shared the criminal intent†(Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287) for such
liability.
Our conclusion that appellant was not
prejudiced is bolstered by the fact the jury was only instructed on a direct
aiding and abetting theory and not on the natural and probable causes doctrine
of aiding and abetting. (See
probable consequences doctrine, an aider and abettor’s mental state must be at
least that required of the direct perpetratorâ€].) The jury was instructed on the natural and
probable causes doctrine only in connection with the uncharged conspiracy
theory discussed above. For reasons
discussed above, this was a valid theory of liability and we therefore reject
appellant’s assertion that “the jury was incorrectly instructed on all
applicable theories of vicarious liability.â€
evidence of the gang and firearm enhancements
Appellant contends that the gang enhancements (§ 186.22, subd.
(b))
title="">[11] and gang-related firearm
enhancements (§ 12022.53, subd. (e))
insufficiency of the evidence.
Specifically, he claims there
was insufficient evidence to establish the second prong of the gang
enhancement: the “specific intent to
promote, further, or assist in any criminal
conduct by gang members ....†(§
186.22, subd. (b)(1).) This is so,
appellant argues, because there was no substantial evidence the crimes were
gang related. Appellant argues Officer
Stratton’s expert opinion, standing alone, was insufficient to find the
offenses were gang related. Appellant
further argues that the evidence showed “merely a car full of individuals who
did not want to make contact with the police†and that their intent was “to
avoid being stopped to benefit themselves, not some organization they
belong[ed] to.†We reject appellant’s
arguments and conclude ample evidence supported the conclusion that his crimes
were gang related.
We review the sufficiency of the
evidence to support enhancement allegations under the same standard we apply to
a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457.) In deciding the sufficiency of the evidence,
we draw all reasonable inferences from the record to support the judgment. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
We do not weigh the evidence to decide the credibility of the
witnesses. (Ibid.)
At
the outset, we note that our Supreme Court’s recent discussion in
(Albillar) casts doubt on the
proposition that an expert’s opinion is insufficient to support a finding that
a crime was for the benefit of a gang.
According to Albillar, “[e]xpert opinion that particular
criminal conduct benefited a gang by enhancing its reputation for viciousness
can be sufficient to raise the inference that the conduct was ‘committed for
the benefit of … a[] criminal street gang’ within the meaning of section
186.22(b)(1). [Citations.]†(Id.
at p. 63.) Here,
Officer Stratton testified the criminal conduct in this case would benefit the
Varrio Bakers gang because it would “[n]ot only does it enhance each gang
member’s reputation on their own†but “would enhance the reputation of the gang
as a whole as a violent and lawless notorious organization.†This was sufficient evidence that the crimes
were gang related.
Moreover,
under existing case law, the fact that appellant, a member of the Varrio Baker
gang, committed the crimes in the company of two other members of the same
gang, supports an inference that the crimes were gang related. (See People v. Miranda (2011)
192 Cal.App.4th 398, 412-413 [commission of crime accompanied by gang members
or associates supports inference defendant intended to benefit gang];
Cal.App.4th 310, 322 [non-gang member’s commission of crime in association with
known gang member supports inference crime was gang related];
1176, 1198-1199 [commission of crime with fellow gang members supports
inference crime was committed in association with gang].)
Appellant relies on
650 (Ochoa) to support his
argument. In Ochoa, a lone gang member committed a carjacking. Based on the defendant’s tattoos and
admissions, the prosecution experts testified that the defendant was a gang
member. (Ochoa, supra, 179
Cal.App.4th at pp. 653-654.) These
experts also testified that the defendant committed the carjacking for the
benefit of the gang, even though they acknowledged that the gang’s signature
crime was car theft and that car theft was distinct from carjacking. (Id.
at pp. 654-656.) Ochoa noted that “[t]here was no evidence that only gang members committed carjacking or that a gang member could
not commit a carjacking for personal benefit, rather than for the benefit of
the gang.†(Id. at p. 662.)
evidence, stating:
“Defendant did not call out a gang
name, display gang signs, wear gang clothing, or engage in graffiti while
committing the instant offenses. There
was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw
any of defendant’s tattoos. There was no
evidence the crimes were committed in Moreno Valley 13 gang territory or the
territory of its rivals. There was no
evidence that the victim of the crimes was a gang member or a Moreno Valley 13
rival. Defendant did not tell anyone, as
the defendant did in [People v. Ferraez
(2003) 112 Cal.App.4th 925, 928], that he had special gang permission to commit
the carjacking. [Citation.] Defendant was not accompanied by a fellow
gang member.†(Ochoa, supra, 179 Cal.App.4th at p. 662, fn. omitted.)
Thus,
evidence to support the gang enhancement findings.
Ochoa differs from this case in
significant aspects and is not controlling.
Unlike the defendant in Ochoa,
appellant committed criminal offenses that the gang expert identified as being the
primary activities of his gang (i.e., attempted murder, assault with a firearm,
unlawful possession of a firearm). He
did not commit the crimes alone but in the company of two other members of his
gang. Gang-related clothing was found
inside the stolen car they were driving and numerous items useful for
committing robbery and crimes of violence were found in and near the car after
they abandoned it. There was also
evidence that appellant, unlike the defendant in Ochoa, bragged or took credit for the shooting. Appellant reportedly laughed when a news
story about the shooting came on television, and his girlfriend sent a text
message to a friend stating he “shot at a cop over the weekend.†Thus, unlike the
court in Ochoa, we may conclude there
was substantial evidence supporting the gang enhancements and gang-related
firearm enhancements.
section 12022.53
Appellant contends section
12022.53, subdivision (e)(1) violates equal protection by treating aiders and
abettors of gang offenses differently from aiders and abettors of nongang
offenses. The courts in
1 (Gonzales) and People v. Hernandez (2005) 134 Cal.App.4th 474 (
claim, and we find no basis to depart from this established authority.
“The constitutional guaranty of equal
protection of the laws has been judicially defined to mean that no person or
class of persons shall be denied the same protection of the laws which is
enjoyed by other persons or other classes in like circumstances in their lives,
liberty and property and in their pursuit of happiness. [Citations.]
The concept recognizes that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment, but it does not,
however, require absolute equality.
[Citations.] Accordingly, a state
may provide for differences as long as the result does not amount to invidious
discrimination. [Citations.]†(People
v. Romo (1975) 14 Cal.3d 189, 196.)
“‘“The first prerequisite to a meritorious
claim under the equal protection clause is a showing that the state has adopted
a classification that affects two or more similarly
situated groups in an unequal manner.â€
[Citations.]’†(
1403, 1427.) “If persons are not
similarly situated for purposes of the law, an equal protection claim fails at
the threshold.†(People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) The court in Gonzalez, supra, 87
Cal.App.4th at page 13 expressly addressed and rejected appellant’s argument
that an aider and abettor of a gang member who discharges a firearm is
similarly situated to an aider and abettor of a firearm user who is not a
member of a criminal street gang. The
court explained that “[u]nlike other aiders and abettors who have encouraged
the commission of a target offense resulting in a murder, defendants committed
their crime with the purpose of promoting and furthering their street gang in
its criminal conduct.... [¶] Defendants were not similarly situated with
other aiders and abettors, and on that basis, their equal protection argument
fails.†(Ibid.)
But even if appellant could show that he was
similarly situated with aiders and abettors of non-gang members, “‘a second
level of analysis is required. If the
law in question impinges on the exercise of a fundamental right, it is subject
to strict scrutiny and will be upheld only if it is necessary to further a
compelling state interest. All other
legislation satisfies the requirements of equal protection if it bears a
rational relationship to a legitimate state purpose. [Citation.]’â€
(Gonzalez,
12-13.) Though appellant contends aiding
and abetting a gang shooting involves the exercise of a fundamental right
subject to strict scrutiny, the court in Hernandez,
determined that rational basis review was the appropriate test to resolve an
equal protection challenge to section 12022.53, subdivision (e)(1). The rational basis test typically applies to
an equal protection challenge to a criminal statutory scheme where there is no
claim that the classification at issue involves a suspect class or harsher
treatment for a juvenile than an adult.
(People v. Wilkinson (2004) 33
Cal.4th 821, 838 (Wilkinson).)
The court in Hernandez, supra, 134
Cal.App.4th at page 483, further concluded that the enhancement provided by
section 12022.53, subdivision (e)(1) satisfied the rational basis test: “Clearly the Legislature had a rational basis
for imposing a 25-years-to-life enhancement on one who aids and abets a
gang-related murder in which the perpetrator uses a gun, regardless of the
relationship between the aider and abettor and the perpetrator. As we previously observed, the purpose of this
enhancement is to reduce through punishment and deterrence ‘the serious threats
posed to the citizens of California by gang members using firearms.’ One way to accomplish this purpose is to
punish equally with the perpetrator a person who, acting with knowledge of the
perpetrator’s criminal purpose, promotes, encourages or assists the perpetrator
to commit the murder.†(Fn. omitted.)
Citing People
v. Olivas (1976) 17 Cal.3d 236 (Olivas),
appellant argues that we should not adopt the rational basis test endorsed by
Appellant’s argument is contrary to law.
In Wilkinson,
Supreme Court held that the statutory scheme governing the offense of battery
on a custodial officer did not violate equal protection principles. (Id.
at pp. 838-841.) In reaching its
conclusion, the court rejected the defendant’s argument that strict scrutiny
was required according to Olivas, a
case involving an equal protection challenge to a statute which gave the trial
court discretion to commit a defendant, convicted as an adult and between the
ages of 16 and 21, to the California Youth
Authority for a longer term than the defendant would have received if he or
she had been sentenced as an adult. (See
Wilkinson, supra, at p. 837.) The
that strict scrutiny is required for an equal protection challenge on the
grounds a penal statute authorizes different sentences for comparable
offense. The court explained that
boundaries between the adult and juvenile criminal justice systems be
rigorously maintained. We do not read
subject all criminal classifications to strict scrutiny requiring the showing
of a compelling state interest therefor.’
[Citation.] Other courts
similarly have concluded that a broad reading of Olivas, as advocated by appellant here, would ‘intrude[] too
heavily on the police power and the Legislature’s prerogative to set criminal
justice policy.’ [Citations.]†(Wilkinson,
supra, at pp. 837-838.) Accordingly, the rational basis test applied
in Hernandez is applicable and
results in the conclusion that section 12022.53, subdivision (e)(1) does not
violate equal protection principles.
The
trial court awarded appellant 424 days of actual custody credits and 62 days of
conduct credits, for a total presentence credit of 486 days. Appellant contends, and respondent concedes,
appellant was entitled to 425 days of actual custody credits and 63 days of
conduct credits, for a total presentence credit of 488 days. We accept respondent’s concession and direct
the trial court to amend the abstract of judgment accordingly.
The trial court shall amend the
abstract of judgment to reflect an award of 425 days of actual custody credits,
and 63 days of conduct credits, for a total presentence credit of 488 days, and
provide an amended abstract to the Department
of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
_____________________
HILL,
P. J.
WE CONCUR:
_____________________
WISEMAN, J.
_____________________
FRANSON, J.
name="_ftn1" title="">[1] Further
statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Appellant
was charged jointly with Aguirre and Oregon but tried separately.
