Filed
6/20/13 P. v. Tapia CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RAMON LOPEZ TAPIA,
Defendant and
Appellant.
F062550
(Kern
Super. Ct. No. BF128470A)
APPEAL from
a judgment of the Superior Court of
Jerome P.
Wallingford, 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, Eric L. Christoffersen and
Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Ramon Lopez Tapia sold drugs in Wasco.
Augustine Villagomez and his girlfriend, Cecilia Saldana, purchased
methamphetamine from him, but they were upset because they received a smaller
quantity than they had paid for. A few
days after the sale, Villagomez and defendant confronted each other in an alley
and fired shots at each other. Defendant
used a nine-millimeter handgun, and he was with a man who had a shotgun. No one was hurt. A few days after that shooting, defendant’s
vehicle followed Saul Arrellano’s vehicle through Wasco; Arrellano was driving
and Villagomez was in the front passenger seat.
Arrellano had not been involved in the previous drug dispute. There were multiple gunshots fired from
defendant’s vehicle into Arrellano’s car from two different weapons: a nine-millimeter handgun and a shotgun. Villagomez was killed from shots fired from the
handgun, and Arrellano was wounded by shotgun pellets. After the homicide, defendant told a friend
that, “ ‘[I]t’s done, I shot his head out,’ †and that Arrellano had
not been the target.
Defendant
was charged with count I, first degree premeditated murder of Villagomez (Pen.
Code,
attempted premeditated murder of Arrellano (§§ 664/187, subd. (a)). As to both counts, it was alleged that
defendant personally and intentionally discharged a firearm causing death or
great bodily injury (§ 12022.53, subd. (d)), and that he had served two
prior prison terms (§ 667.5, subd. (b)).
At trial, defendant testified that
a man named “Chema†and his associate were the gunmen. Chema was defendant’s drug supplier, and
Chema was angry at Villagomez because of the methamphetamine dispute. Defendant relied on a duress defense and
claimed Chema and his associate held him at gunpoint, took his gun away from
him, and ordered him to drive them to Wasco so Chema could find
Villagomez. Defendant testified Chema
threatened to kill defendant and his family if he did not obey his orders. Defendant testified he never fired any
weapons at Arrellano’s vehicle; that he thought Chema was just going to talk to
Villagomez; and he did not know Chema was going to kill Villagomez.
Defendant
was convicted of first degree murder of Villagomez. He was found not guilty of attempted murder
of Arrellano, and the jury found the personal discharge allegation not
true. He was sentenced to 25 years to
life.
On appeal,
defendant contends the court abused its discretion and violated his
constitutional rights when it responded to a series of questions from the jury
during deliberations about the impact of his duress defense on the charged
offenses. Defendant complains that
instead of responding to the questions, the court improperly ordered the
prosecutor and defense counsel to reopen their closing arguments and address
the issues raised by the jury’s questions.
Defendant also contends his life term constitutes cruel and/or unusual
punishment because he was convicted of first degree murder as an aider and
abetter. Finally, defendant argues the
court should have ordered the probation report’s factual summary stricken
because it was inaccurate. We affirm.
In May
2009, defendant sold methamphetamine to Augustine Villagomez and his
girlfriend, Cecilia Saldana.
name="_ftnref2" title="">[2] According to Saldana, defendant did not give
them the full quantity of methamphetamine that they had paid for. Villagomez called defendant and asked for the
rest of the methamphetamine. Defendant
said he was not going to give them any more methamphetamine, and they argued
about the issue.
The shooting in the alley
On May 15,
2009, Saldana was driving her car in Wasco with Villagomez and another
man. They saw defendant driving in his
car. According to Saldana, she followed
defendant’s car into an alley because they wanted to “make peace†with him
about the drug argument. Villagomez was
carrying a .25-caliber handgun. Both
Saldana and defendant parked in the alley.
Villagomez got out and walked to defendant’s car. According to Saldana, defendant got out of
his car and began shooting at Villagomez.
Villagomez returned fire and ran back to Saldana’s car. Villagomez got into the car and Saldana drove
away.
gunshots.
Jose
Hinojosa, who knew defendant, was working in a nearby storage shed adjacent to
the alley. Hinojosa heard multiple
gunshots from a small caliber weapon, most likely a .25- or .22-caliber pistol. He then heard the sound of “big shots†fired
from a nine-millimeter. Defendant ran
into the shed and told Hinojosa that some “kid†tried to rob him in the alley. Defendant had a semiautomatic handgun, which
appeared to be either a nine-millimeter or a .45-caliber. Defendant was with another man who had a
shotgun. Hinojosa described the other
man as Hispanic, bald, and heavy-set.
Hinojosa had never seen the other man.
Defendant reloaded his handgun.
He was upset and said he was going to take care of business, and left
with the other man.
Around
11:30 p.m., a deputy responded to the alley on the dispatch about a possible
shooting. No one was there, and the cars
were gone. The deputy found several
nine-millimeter and .25-caliber shell casings, a .25-caliber fired bullet, and
broken glass. The nine-millimeter and
.25-caliber casings were in separate clusters, about 10 yards apart from each
other.
The homicide
In the late
afternoon of Sunday, May 17, 2009, Saul Arrellano was driving his black Honda Passport
SUV on D Street in Wasco. Villagomez was
sitting in the front passenger seat.
Lucia Reyes
and Maria Mercado were standing together on Fourth and D Streets. Reyes saw a dark colored vehicle drive
by. The dark vehicle was later
identified as Arrellano’s black SUV. It
was being followed by a green vehicle, later identified as defendant’s
SUV. Defendant’s vehicle was traveling
very slowly. Reyes heard loud noises and
thought they were firecrackers.
Defendant’s vehicle turned onto Fifth Street and the tires
screeched. Arrellano’s SUV was still in
front of defendant’s vehicle, and it crashed into another car.
Mercado and Reyes saw someone get
out of Arrellano’s vehicle and run away.
No one got out of defendant’s vehicle.
However, Reyes saw a hand holding an object out of the passenger window
of defendant’s green SUV. Reyes saw
smoke and flashes, and heard additional “firecracker†sounds. Mercado heard gunfire and saw smoke from
several gunshots.
Reyes could not see into
defendant’s green SUV, but she believed there were two people inside because
the driver would not have been able to extend his hand out of the passenger
window.
Robert Ornelas lived on the corner
of D and Fifth Streets. He heard four or
five gunshots and looked out the window. He recognized Arrellano’s black SUV, and
testified that it was “drifting†across the street and into the
intersection. Arrellano’s SUV crossed
the intersection, went up on the curb, bumped into a parked car, and
stopped. Ornelas ran outside and checked
Arrellano’s car. The driver’s side
window was broken. There was one person
in the vehicle, sitting in the front passenger seat, and he was later
identified as Villagomez. Villagomez was
slumped over, and he was not breathing.
He had been shot multiple times in his upper body. Ornelas called 911.
Another witness later informed a
deputy that the witness heard gunshots and saw a green van traveling on D
Street. The witness saw a man running
along the side of the green van. The
witness recognized the man, and thought he lived on D Street. The man fired four rounds into the passenger
side of the green van. He dropped the
gun and then ran to a residence on D Street.
The witness later saw the man’s father walk over and pick up the gun.
Arrellano runs to his parents’ house
Arrellano’s parents lived on D
Street, just south of 5th Street.
Arrellano’s father testified he was sitting outside his house that
afternoon and saw his son’s black SUV drive by at a high rate of speed. It was being followed by a green SUV. He could not see who was in the green
vehicle.
About 30 seconds after seeing the
two vehicles, Arrellano’s father heard five or six gunshots. About three minutes after hearing the
gunshots, Arrellano ran to his parents’ house.
Arrellano was bleeding from a
gunshot wound, and had a “big hole†in his left shoulder. There were shotgun pellets in the wound. Arrellano told his father: “[T]hey shot me.†Arrellano said he had “only seen the barrelâ€
through the window “and then he got down when it hit.â€
Arrellano’s sister, a health care
professional, tried to stop the bleeding.
Arrellano told his sister that he was shot; that he did not know who did
it; and that Villagomez was dead.
Arrellano’s sister cleaned the wound and decided to drive him to the hospital. On the way, she drove past the scene of the
shooting, saw the emergency personnel, and advised them of defendant’s gunshot
wound. The police and emergency
personnel took defendant to the hospital for treatment.
Arrellano’s father testified that
he walked to the intersection, looked into Arrellano’s car, and saw
Villagomez’s body. Arrellano’s father
testified that he found his son’s cell phone on the street, and he picked it
up. He insisted that he did not find or
pick up a gun.
title="">[6]
The initial investigation
When the
sheriff’s deputies arrived at D and Fifth Streets, they found Arrellano’s black
SUV stopped against another vehicle.
Villagomez’s body was slumped over in the front passenger seat. There were bullet holes on the driver’s side
door, and a large bullet hole in the driver’s side window.
Cecilia
Saldana, Villagomez’s girlfriend, arrived at the scene and threw herself on
Villagomez’s body. The deputies had to
escort her away from the area to preserve the crime scene. Saldana said that Villagomez’s family called
and told her about the shooting.
Villagomez
died from multiple gunshot wounds to his head, neck, chest, and back. The bullets entered his lung and spine, and
most of them lodged in his body. The
wounds did not appear to be inflicted by a shotgun. The bullets and fragments recovered from his
body appeared to be from a large caliber weapon, possibly a nine-millimeter.
While the deputies were
investigating the scene, Arrellano arrived in his sister’s car, and said he had
been shot in the left shoulder. A deputy
who looked at the wound thought it was inflicted by a shotgun. Arrellano was taken to the hospital for
treatment. He survived the wound to his
left shoulder.
Arrellano’s
father testified that sometime in August 2009, after Arrellano recovered from
his wound, Arrellano and his wife left Wasco and moved to another state. At the time of trial, Arrellano’s father said
he did not know where they were.
Additional investigation
On June 10,
2009, Sergeant Adrian Olmos interviewed Jose Hinojosa about his contacts with
defendant. Hinojosa said that he spoke
to defendant after Villagomez was killed, and defendant said, “ ‘[I]t’s
done, I shot his head out.’ â€
Defendant said Arrellano had also been shot. Defendant also said Arrellano was not the
target, and defendant “had to do what he had to do.â€
Hinojosa said defendant had a
friend named “Chema†who lived in Earlimart.
Hinojosa said that Chema was not the man with the shotgun who ran into
his shed with defendant during the alley shooting.
Arrellano’s
black SUV was examined, and there were five bullet holes on the driver’s side
door. The bullets entered from the
outside at a slightly downward angle. It
was possible that the driver’s side door was open during part of the shooting. It was also determined that two weapons were
fired into Arrellano’s vehicle: a
nine-millimeter handgun and a shotgun.
Defendant’s postarrest statement
On June 25,
2009, defendant was arrested in Monica Calderon’s trailer in Lemoore. Sergeant Olmos interviewed defendant at the
Lemoore Police Department. Defendant was
advised of the Miranda
Defendant
admitted he sold methamphetamine to Saldana and Villagomez. Defendant said he called Villagomez an “old
man†during the meeting. Villagomez
became very upset and wanted to fight with defendant. Saldana told Villagomez to calm down, and
they left. Defendant was asked if they
argued about drugs, and defendant said they argued about something else.
Defendant was
asked about the shooting in the alley.
Defendant said he was driving in Wasco when he realized Saldana was
following him. Defendant parked at an
apartment complex. Villagomez walked up
to the car, pointed a gun at his head, and said, “ ‘I came to kill
you.’ †Villagomez started shooting
at defendant. Defendant got out of the
car and returned fire. Villagomez ran
back to Saldana’s car and they drove away.
Defendant said he did not know why Villagomez tried to kill him. Defendant said he did not report the shooting
because he felt the deputies would not do anything about it.
Defendant said he knew about the
Varrio Wasco Rifas gang in Wasco. A
person named “Yoyo†was the gang’s “shot caller.†Yoyo tried to “tax†defendant for selling
drugs in Wasco, but defendant never paid him.
Defendant said he told Yoyo that Villagomez tried to kill him. Yoyo said he would talk to Saldana and
Villagomez to stop, but defendant did not know if Yoyo actually had the
conversation.
Defendant said he went to a female
friend’s house in Shafter after the shooting in the alley. There were two unknown Hispanic men at the
house: one was light-skinned and the
other was dark-skinned. Defendant said
he had never seen these men. The
dark-skinned man pointed a gun at defendant and said defendant had to drive
them around Wasco and hunt down Villagomez.
The two Hispanic men said they did not like Villagomez or Saldana
because of a prior drug transaction.
Defendant said he did not know why the two men wanted to kill Villagomez.
Defendant said on the day of the
homicide, he drove the two men to Wasco in his green SUV and helped them look
for Villagomez. The light-skinned man
was sitting in the front passenger seat, and the other man was in the rear
passenger seat. They saw Arrellano’s
vehicle, and defendant pulled up next to it.
Defendant said Arrellano was driving.
Defendant said the light-skinned man fired a shotgun, and the other man
fired several rounds from a semiautomatic handgun into Arrellano’s vehicle.
Defendant said he fled from Wasco
after the shooting because “gangsters from Wasco†wanted to kill him.
handgun which was found in Calderon’s trailer when he was arrested. Defendant said he had recently stolen the gun
from an unknown man in Shafter.
Defendant said he intended to sell the gun to get some money and that
defendant said he did not use that gun during the alley shooting or the
homicide. Defendant said he got rid of
the gun that he used for the alley shooting.
homicide did not belong to him, and he did not know what happened to it.
Upon further questioning, defendant
admitted that he had purchased a shotgun from Manuel “Lefty†Macias, but he
only kept it one day. He returned it to
Macias and got his money back. Defendant
denied that a shotgun was used during the homicide.
As the interview continued,
defendant said the light-skinned Hispanic was named “Chema.†Defendant also said that he was forced to go
to Wasco by the dark-skinned man.
Defendant believed both men were from Earlimart. Defendant said both men were “Mafia-type
persons,†and he believed they were upset at Saldana for some reason. Defendant said the dark-skinned man actually
hated Saldana.
Defendant said after the shooting
in Wasco, he drove back to Earlimart, dropped off the two Hispanic men, and
left his green vehicle in Earlimart.
Defendant believed that “gangsters†may have stolen the vehicle. The officers went to the location described
by defendant but could not find the vehicle.
Defendant was asked why he did not
come forward to tell his version of the story.
Defendant said he believed the two Hispanic men who killed Villagomez
“would kill him.†They threatened him,
and they said “if he spoke his family would be killed.†Defendant said he had been trying to stay
away from places where he was known, because he believed “gangsters†from Wasco
were going to kill him after the homicide.
After obtaining defendant’s
statements, deputies attempted to locate Chema in Earlimart, but they could not
find anyone who matched defendant’s description of that person.
Criminalist Jeanne Spencer
Jeanne
Spencer testified that she examined Arrellano’s vehicle and determined that a
shotgun and a handgun of unknown caliber were used to fire shots into it. One copper jacket was recovered from the
front passenger door of Arrellano’s SUV, along with several metal fragments
inside the car and the driver’s door.
Spencer testified five bullets
entered the driver’s side door, and two hit the window. One hit the pillar of the passenger-side door
jamb. The trajectory of the bullets
which entered from the driver’s side appeared to be a slightly downward
angle. Based on the angle of some of the
shots, the driver’s door could have been slightly open when the shots were
fired, the driver could have been hunched down, or a victim could have been in
the way.
title="">[11]
Spencer testified the shotgun blast
appeared to have been fired into Arrellano’s vehicle from the driver’s side,
and a cluster of pellets hit the pillar between the front and rear passenger
doors. The shotgun pellets appeared to
have traveled from the front of the driver’s side window towards the back
portion of the front passenger window, likely resulting in the large hole in
the driver’s side window. There was no
evidence that more than one shotgun blast caused the damage in the SUV. However, it was possible that more than one shotgun
blast was fired into the vehicle and hit someone.
Cecilia Saldana
Cecilia
Saldana was recalled as a defense witness. Saldana testified she was not in Arrellano’s
vehicle during the homicide. Someone
called her about the shooting, but she could not remember who made the call. Saldana did not remove a weapon from the
vehicle when she threw herself on Villagomez’s body. Saldana testified that she did not sell
methamphetamine, buy drugs from defendant, or tell Villagomez to kill
defendant. Saldana described Yoyo as a
“mutual friend/acquaintance,†but said she did not sell drugs or move weapons
for him. She did not remember anything
about the shooting in the alley. She
never saw Villagomez with a gun. Saldana
denied that she sold drugs while housed at the Lerdo facility, or that she
threatened Villagomez’s family after the shooting in the alley. Saldana testified she was not part of a gang,
and she did not sell drugs or collect taxes for the gang. She pleaded to the gang offense because she
“followed the crowd.â€
Defendant
testified that he was convicted of possession for sale in 1997 and served a
prison term. Defendant met Chema in
January or February 2009, when he bought drugs from him. Chema asked if he wanted to sell
methamphetamine for him. Defendant
agreed and sold drugs for Chema in Wasco.
Defendant testified that Chema
lived in a trailer in Earlimart with his wife and young children. He thought Chema’s name was “Jose Maria,†but
he did not know his last name. Defendant
used to have Chema’s cell phone number, but he did not know it anymore.
Defendant testified he met Yoyo,
Saldana, and Villagomez while he was working for Chema. Defendant often sold drugs to Saldana. Saldana and Yoyo also worked together to sell
drugs. Saldana told defendant that she
was able to get drugs into the Lerdo detention facility. Defendant often saw Saldana with two
“gun-packing†men: Villagomez and
another man.
Defendant testified that Saldana
and Yoyo wanted him to pay “taxes†for selling drugs in Wasco. Defendant told Chema about their demand, and
Chema said not to pay them. Chema gave
defendant a nine-millimeter handgun for protection from the “cholos†who wanted
him to pay “taxes.â€
Defendant
said he sold drugs to Saldana and Villagomez in May 2009, but “there was just
very little missing.†Villagomez also
became angry because defendant mispronounced his name. Saldana called him at 4:00 a.m. and
complained about the missing drugs.
Defendant was with Chema when he received the call. Chema told defendant not to give them
anything. Defendant, Chema, and another
man drove to a meeting with Saldana and Villgomez. Defendant and the other man got out of the
car and walked to Saldana’s car. Chema
stayed in the car and aimed a shotgun at Saldana. They gave additional drugs to Saldana and
Villagomez. The other man told Saldana
not to bug defendant anymore, and they left.
The shooting in the alley
Defendant
testified that sometime after delivering the rest of the drugs, he was driving
to Hinojosa’s house and parked in the alley.
He noticed Saldana’s car parked behind him. Villagomez walked up to defendant’s car,
pointed a gun at defendant’s head, and said, “I’ve come to kill you.†Defendant bent down to get his gun from under
the seat. Villagomez ran toward the rear
of defendant’s car and fired four shots into the rear window, which shattered
the glass. Defendant got out of his car,
fired back, and then went into Hinojosa’s house to reload. As he was reloading, a “boy†arrived with a
shotgun. The boy lived nearby and was
Chema’s friend. Defendant told the boy
what happened, and the boy wanted to chase the gunman. Defendant told him not to. Defendant fled to Shafter and stayed with
Monica Calderon.
Defendant
testified that his wife called him in Shafter and said that Saldana had
appeared at their house. Saldana banged
on the door and yelled for defendant to come out. Saldana was with two “cholos,†one of whom
had a gun.
Defendant called Yoyo and told him
what Saldana had done. Yoyo talked to
Saldana and Villagomez, and they agreed to replace the broken window in
defendant’s car. They also agreed to
settle the matter as friends.
Defendant
testified that after the shooting in the alley, he realized that he was
“involved in things that you could say were leading me down the wrong
path.†Defendant called Chema and said
that he wanted to end their relationship, and he would return Chema’s money and
drugs. Chema was upset but agreed to
meet him in Shafter to settle things.
Chema was also upset with Saldana and Villagomez, because their actions
led to defendant’s decision to stop selling drugs for him.
Chema orders defendant to drive to Wasco
Defendant testified that Chema and
another man arrived in Shafter to pick up Chema’s drugs and money from
defendant. Chema’s associate was not the
same man who had appeared with a shotgun after the shooting in the alley.
Defendant, Chema, and his associate
got into defendant’s green van, and defendant returned Chema’s money and
drugs. Chema told defendant that they
were going to Wasco to look for Villagomez.
Defendant protested. Chema’s
associate held a gun to defendant’s back, and took defendant’s gun away from
him. “They told me to take him to
Wasco. I had no other choice but to take
them to Wasco.…â€
Defendant
testified that he drove them to Wasco.
Defendant recognized Arrellano’s black vehicle but did not know who was
sitting in the passenger seat. Chema
told defendant to follow them. Defendant
asked why. Chema said that if he did not
follow them, “it will be your family.â€
Defendant, who had six children, believed that “if I didn’t keep driving
they would kill my children or kill me, too.â€
Defendant
testified that he knew Chema and his associate had weapons, but he thought
Chema just wanted to speak to Arrellano and Villagomez. As they followed Arrellano’s car, they could
see that Villagomez made “boxing†motions and “signs back to our direction
towards Chema. He was swinging his fists
basically like he was going to kick his ass.â€
Defendant again asked Chema why they were following them, and whether
the other men were armed. Chema’s
associate put the gun against defendant’s back and said to keep following them.
The homicide
Defendant
testified that Arrellano pulled over to the curb. Defendant parked behind them because he
thought Chema wanted to talk. However,
Chema told defendant: “[P]ass him,
dumbass.â€
Defendant testified he drove past
Arrellano’s car. Chema and his associate
started firing into Arrellano’s car.
Chema had a shotgun and his associate used another weapon. (RT 508)
Defendant testified the shotgun belonged to Chema, but defendant had
previously kept it for him, and had returned it to Chema a few days earlier.
Defendant noticed that Arrellano
bent down during the shooting. Defendant
accelerated past Arrellano because he did not want anyone to be killed. Chema said:
“[G]et back there, dumbass,†and added, “I don’t want to leave any
witnesses.…†Chema said that if
defendant did not do what he said, then Chema would kill defendant on the spot.
Defendant testified that he “went
back [to Arrellano’s vehicle] and right away I went forward again and it
happened all very fast, very quickly.â€
Chema and his associate continued to fire their guns into Arrellano’s
vehicle.
After they finished shooting, Chema
told defendant to hit the gas. Defendant
accelerated and drove to Earlimart.
During the drive, Chema and his associate discussed whether they should
kill defendant. Chema finally said they
were going to let defendant go because he would be blamed for killing
Villagomez, since defendant had been involved in the alley shooting a few days
earlier. Defendant dropped off Chema and
his associate, dumped his green van, and stayed with friends. He never saw Chema again.
Defendant
testified he never saw Hinojosa after the homicide, and he never said that he
had blown off Villagomez’s head.
Defendant claimed that the deputies beat him up after he was arrested in
Lemoore.
Sergeant
Olmos testified that he interviewed defendant after he was arrested. Defendant never mentioned Chema’s name. Defendant never said that he sold drugs for
Chema, or that he told Chema that he wanted to stop selling drugs for him. Sergeant Olmos testified that he brought up
Chema’s name during the interview and asked defendant if he knew someone named
Chema. Defendant initially denied
knowing that person. Toward the end of
the interview, defendant said he knew someone named Chema who lived in
Earlimart, but he did not offer any details and said he did not know that person
very well.
After a jury trial, defendant was
convicted of first degree murder of Villagomez.
He was found not guilty of the attempted murder of Arrellano. The jury found the personal discharge special
allegation not true. The court dismissed
the prior prison term enhancements.
Defendant was sentenced to 25 years to life for murder.
I.
The
court’s responses to the jury’s questions
As
explained, ante, defendant testified
that Chema and his associate forced him at gunpoint to drive to Wasco and find
Villagomez. However, defendant insisted
that he thought Chema only wanted to talk to Villagomez, that he did not know
what Chema was going to kill him, and he only drove the vehicle because of
Chema’s threats against him.
During deliberations, the jury
asked two questions about the interplay between murder, duress, and aiding and
abetting. The court responded to one
question and asked the jury to clarify the other question. When the jury asked two more questions on the
same topics, the court decided to permit the parties to reopen their closing
arguments to address the issues raised by the questions. The court believed that a direct response to
the jury’s questions would be inappropriate because the answers were dependent
on the disputed facts of the case.
Defense counsel initially asked the court to respond to the questions,
but then concurred with the court’s decision to have further argument.
On appeal, defendant contends the
court committed prejudicial error when it directed the attorneys to give
additional arguments on the jury’s questions about murder, duress, and aiding
and abetting. Defendant contends the
court abdicated its duty to respond to the jury’s questions. Defendant further contends the court’s
decision to reopen argument was prejudicial because both the prosecutor and
defense counsel misstated the legal principles of aiding and abetting and
duress.
We will find that defendant did not
object to the court’s decision or to the prosecutor’s argument. In addition, we will find the court did not
abuse its discretion when it decided to permit the parties to give further
arguments in response to the jury’s questions about aiding and abetting and
duress.
In order to
address these contentions, we will begin with the legal principles of murder
and duress, review the procedural history of the jury’s questions and the
reopened arguments, and then address defendant’s appellate issues.
A.
Murder
and duress
We begin
with the legal principles about the interplay between murder and the duress
defense. Section
26 states that “[a]ll persons are capable of
committing crimes†except “[p]ersons (unless the crime be punishable
with death) who committed the act or made the omission charged under threats or
menaces sufficient to show that they had reasonable cause to and did believe
their lives would be endangered if they refused.†(§ 26, subd. (6).) “ ‘The common characteristic of all the
decisions upholding [a duress defense] lies in the immediacy and imminency of
the threatened action: each represents
the situation of a present and active aggressor threatening immediate danger;
none depict a phantasmagoria of future harm.’
[Citations.]†(
290 (Vieira).) The
defendant must show that he acted under immediate threat of harm and reasonably
believed his life was in danger, such that the defendant did not have time to
form the required criminal intent. (People
v. Heath (1989) 207 Cal.App.3d 892, 899-901.) “The unlawful acts of the person under
duress are attributed to the coercing party who supplies the requisite mens rea
and is liable for the crime.
[Citation.]†(
999, 1012.)
Section
26 contains an important exception: the
duress defense does not apply when the defendant is charged with a crime that
is “punishable with death.†(§ 26,
subd. (6).) The California Supreme
Court has concluded that this language “excludes all murder from the duress
defense[,]†regardless of whether the People seek the death penalty. (People
v. Anderson (2002) 28 Cal.4th 767, 775-776 (Anderson).) The Legislature
has statutorily barred the use of the duress defense in such cases for policy
reasons. (Id. at pp. 778-780; People v.
Son (2000) 79 Cal.App.4th 224, 234.)
“[F]ear for one’s own life does not justify killing an innocent
person[,]†and “[t]he law should require people to choose to resist rather than
kill an innocent person.†(
It is thus
settled that “duress is not a defense to any form of murder.†(Anderson,
supra, 28 Cal.4th at
p. 780.) Duress cannot negate “the
elements of malice or premeditation,
reducing a first degree murder to manslaughter or second degree murder. [Citation.]â€
(Vieira, supra, 35 Cal.4th at p. 290.)
“Although duress is not an affirmative defense to
murder, the circumstances
relevant to whether the evidence establishes the elements of implied malice
murder. The reasons a person acted in a
certain way, including threats of death, are highly relevant to whether the
person acted with a conscious or wanton disregard for human life. [Citation.]
This is not due to a special doctrine of duress but to the requirements
of implied malice murder.†(
“Moreover, because duress cannot,
as a matter of law, negate the intent, malice or premeditation elements of a
first degree murder, we further reject [the] argument that duress could negate
the requisite intent for one charged with aiding and abetting a first degree
murder. [Citation.]†(Vieira,
supra, 35 Cal.4th at p. 290.)
“We agree that a killing under duress, like any killing,
may or may not be premeditated, depending on the circumstances. If a person obeys an order to kill without
reflection, the jury might find no premeditation and thus convict of second
degree murder. As with implied malice
murder, this circumstance is not due to a special doctrine of duress but to the
legal requirements of first degree murder.…
Here, the jury found premeditation.
In some other case, it might not.
It is for the jury to decide.
But, unless and until the Legislature decides otherwise, a malicious,
premeditated killing, even under duress, is first degree murder.†(Anderson,
supra, 28 Cal.4th at p. 784,
italics added.)
With these
principles in mind, we turn to the procedural background for defendant’s
appellate contentions.
B.
The
charges and instructions
As applied to the instant case, the
People did not seek the death penalty against defendant, but he was charged
with first degree murder, a crime punishable with death. Thus, the defense of duress was not
applicable to count I, first degree murder of Villagomez. (See, e.g., People v. Son, supra, 79
Cal.App.4th at p. 234.) However,
attempted murder is subject to a duress defense, and was thus available for
count II, attempted murder of Arrellano.
The jury in
this case was instructed on aiding and abetting, that defendant could be guilty
of the charged offenses either as the perpetrator or an aider and abettor. (CALCRIM Nos. 400, 401, 402.)
“To prove that the defendant is
guilty of a crime based on aiding and abetting the People must prove that first
the perpetrator committed the crime.
Second, the defendant knew that the perpetrator intended to commit the
crime. Third, 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.
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,…â€
(CALCRIM No. 401, italics added.)
As to count I, the jury was
instructed on first degree murder; express and implied malice; and willful,
deliberate, and premeditated murder.
(CALCRIM No. 520.) The jury was
also instructed on second degree murder (CALCRIM No. 521) and voluntary
manslaughter as lesser included offenses (CALCRIM No. 570); and that
provocation could reduce murder from first degree, to second degree or
manslaughter. (CALCRIM No. 522.)
As to count
II, the jury was instructed on the elements of attempted murder (CALCRIM No.
600); and attempted voluntary manslaughter as a lesser included offense
(CALCRIM Nos. 603, 604).
The jury
also received CALCRIM No. 505, that defendant was not guilty of murder,
attempted murder, or the lesser included offenses if he was justified in
killing or attempting to kill someone in self-defense or defense of
another. The instruction expressly
stated that the harm or threat of harm had to be from Villagomez or someone
associated with Villagomez; Chema was not listed in this instruction.
Finally,
the court gave the following version of CALCRIM No. 3402 on duress:
“The defendant is not guilty of attempted murder if he acted under duress. The defendant acted under duress if because
of threat or menace he believed that his or someone else’s life would be in
immediate danger if he refused to demand or request to commit the crime. The demand or request may have been express
or implied. The defendant’s belief that
his or someone else’s life was in immediate danger must have been
reasonable. When deciding whether the
defendant’s belief was reasonable consider all the circumstances as they were
known to and appeared to the defendant and consider what a reasonable person in
the same position as the defendant would have believed. A threat of future harm is not
sufficient. The danger to life must have
been immediate.
“The People must prove beyond a
reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you
must find the defendant not guilty of attempted murder. This
defense does not apply to the crime of murder.…†(Italics added.)
During the instructional phase,
defense counsel objected to the final sentence of CALCRIM No. 3402, that duress
was not a defense to murder. Defense
counsel argued that phrase was contrary to defendant’s testimony and the
defense theory of the case, that Chema threatened to kill defendant or his
family unless defendant followed his orders to drive to Wasco and find
Villagomez. The court acknowledged
defense counsel’s objection, but replied that Anderson held that duress could never be a defense to murder.
On appeal, defendant has not
challenged the correctness or validity of the duress instruction or any of the
other instructions.
C.
Closing
arguments about duress
In closing
argument, the prosecutor argued that defendant’s multiple stories about Chema
and his alleged threats were not credible.
The prosecutor further argued that even if Chema existed and threatened
defendant, duress was not a defense to murder.
The prosecutor clarified that duress could be a defense to attempted
murder, but “[m]y view of the evidence is it just flat didn’t occur.†The prosecutor argued that the evidence
showed that defendant was upset that Villagomez tried to kill him during the
shooting in the alley. The prosecutor
asserted defendant was one of the gunmen, and he killed Villagomez two days
later.
Defense
counsel argued that defendant’s testimony about Chema was credible, and that
Chema was upset that Villagomez tried to kill defendant in the alley, which led
him to withdraw as Chema’s drug salesman.
Defense counsel argued that Chema used defendant to kill Villagomez so
that defendant would be blamed for the murder.
Defense counsel did not argue that duress was a defense to murder.
Defense counsel argued defendant
was not guilty of the offenses, and the homicide was justifiable, because there
was a shoot-out between the two vehicles, and Villagomez was a dangerous
person. Defendant reasonably feared that
Villagomez was going to kill him based on the previous shooting in the alley,
and Saldana’s subsequent threats against defendant’s wife.
In
rebuttal, the prosecutor argued there was no evidence that defendant or anyone
in his vehicle feared for their lives, since Villagomez and Arrellano were
driving in front of them. There was no
evidence that anyone in Arrellano’s vehicle shot at defendant’s vehicle until
after the shots were fired from defendant’s car. The prosecutor again said the defense of
duress did not apply to murder, it applied to attempted murder, and that
defendant’s story about Chema was not credible.
D.
The
jury’s first and second questions
The jury
began deliberations at 11:40 a.m. on January 20, 2011. At 2:46 p.m., the court received a note from
the jury, which requested “clarification of aiding and abetting and first
degree murder, second degree murder, and manslaughter.â€
At 3:45
p.m., the court received another note.
“[C]an a defense of duress apply to second degree murder
or manslaughter?â€
The court discussed these two notes
with the prosecutor and defense counsel outside the jury’s presence. The court conducted the discussion in
chambers and off the record. The court
allowed the jury to continue deliberating while it discussed the questions with
the parties.
At 3:52 p.m., the court recalled
the jury into the courtroom and responded to the jury’s notes.
“As to whether a defense of
duress can apply to second degree murder or manslaughter, the answer to that is that a defense of duress does not apply to second
degree murder. It can apply to
manslaughter. Of course the
appropriateness and application of the defense is always a matter for your
determination based on the facts as you find them to be. But again, just to summarize it, duress is
not a defense to the crime of second degree murder. It can be a defense to the crime of
manslaughter.†(Italics added.)
The court asked the foreperson
whether this response resolved the jury’s question in the second note. The foreperson said yes. The court then addressed the jury’s first
question:
“[T]hat asks for clarification of aiding and abetting in
first degree murder, second degree murder, and manslaughter. And I hate to answer a question with a
question .… I need to ask if you
could, if you could clarify for me. Do
you just need a clarification or review of the aiding and abetting instructions
in general as to those crimes or is there – perhaps you can clarify for me more
specifically what is the jury’s request or what needs to be clarified according
to your understanding with regards to the application of aiding and abetting to
each of those three crimes. Is that
something you can answer in court or would it be better for you to do a note?â€
The foreperson asked to consult
with the rest of the jury. The court
directed the jury to return to the jury room and clarify its question about
aiding and abetting.
The court did not receive another
note from the jury that day. Neither
party objected to the court’s responses to the jury’s notes. Defendant has not challenged these responses
in this appeal.
E.
The
jury’s third and fourth questions
At 10:25
a.m. on January 21, 2011, the court received the following question from the
jury.
“1) When the law says duress
does not apply to murder, does that mean that if we feel duress occurred that a murder charge in either the 1st or
2nd degree is excluded. Excluded
meaning that [defendant] would not be guilty of murder in the 1st or 2nd
degree?†(Italics added.)
At 10:45 a.m. on January 21, 2011,
the court received another note from the jury.
“1) Since duress does not
apply to murder in the 1st or 2nd degree, if we feel that [defendant] was
forced at gunpoint under duress to drive the van knowing that Chema, or others
were going to murder ViaGomez [sic],
does driving the van under duress constitute aiding and abetting by
[defendant].â€
F.
The
court’s decision to reopen closing arguments
At 12:03
p.m. on January 21, 2011, the court discussed the jury’s third and fourth
questions with the prosecutor and defense counsel. The court told the parties that it received
both notes at the same time.
“[THE
COURT]: … After consulting with counsel
in chambers, it’s my understanding that both counsel are agreeable to the
following procedure and please correct me if you are not.
“It is
difficult to answer either questions particularly the 10:45 a.m. question
description of the law that it would almost seem to resolve the case for them
and I am certainly not comfortable doing that. There is legal authority that permits the
court to reopen argument by counsel under – on limited issues under certain
circumstances and what I am inclined to do is proceed as follows. Rather than the court answering their
question and particularly given the circumstances giving them what I feel would
be such a vague answer it might not be of assistance to them. What
I’m proposing to do is to bring the jury back … and permit counsel to reopen
argument giving each party ten minutes to argue the issues contained and only
the issues contained in … the two timed [questions] … that are addressed at 10:25 and 10:45. After they have concluded the additional ten
minutes of argument … I will read no additional instructions since I believe
the instructions on the legal issues contained are all contained in the
materials that they have and we will then send them back out to deliberate from
there.†(Italics added.)
The court
asked the parties if they agreed. The
prosecutor said yes. Defense counsel
said:
“Yes, Your Honor. Although
I did like the first suggestion of the court where Your Honor was going to
instruct them that the answer to the question was it depends. It has to do with what facts you have found
to be true and under those circumstances you have to make a determination as to
whether or not what – something like that.
You said that much better than I did and I thought that was a better
suggestion.†(Italics added.)
The court
replied that defense counsel accurately recited the court’s initial proposed
response to the jury’s 10:45 a.m. question.
However, the court was concerned about giving a reply to the jury’s
10:25 a.m. question, whether defendant was guilty of first or second degree
murder if the jury found duress.
“The answer to that question in essence from a legal
perspective as I understand it is essentially no. Depends on what the jury finds to be the
facts. They still need to find the
requisite mental elements either on aiding and abetting or direct perpetrator
as they relate to [defendant]. But from
the court’s perspective I have a concern that were the court to answer question
one with what I feel is an accurate recitation of the law of duress, it would
bring a risk of seeming to tell the jury to disregard that defense as it
relates to the murder count and given the fact they were instructed on both
murder and manslaughter and on a variety of different theories of liability,
jurors to be dispositive when in fact it really probably is not. Because there are a variety of different
factual and legal determinations they have to make. So for that reason I think it is more
appropriate to proceed by the second method.†(Italics added.)
The court asked defense counsel
whether he wanted to object to the decision to reopen argument: “I want to make sure you have an opportunity
to fully protect your record.†Defense
counsel replied: “I think I have
protected my record, Your Honor. I’ll
leave it at that.†The court again
stated there was legal authority to reopen argument during deliberations, asked
the parties to research the matter, and called a recess.
After the recess, the court stated
that it was going to respond to the jury’s questions by permitting additional
argument, based on People v. Young
(2007) 156 Cal.App.4th 1165 (Young),
and California Rules of Court, rule 2.1036.
agreed. Defense counsel replied that
great deal of flexibility in allowing counsel to reopen argument. So I
would agree that we can do that.â€
Defense counsel added that
sort of impasse but subsequent rules and changes have taken that problem
aside.†Defense counsel agreed that the
jury’s questions raised “the interpretation of the jury instructions and how
that is applied to the facts as found by the jury. And I think after further thought clearly one
that can be resolved by further argument of counsel and not by simply bringing
in more witnesses .…â€
The court noted that the jury had
not indicated it was deadlocked.
However, the jury had submitted four questions about the same issue, and
the most recent question raised factual issues.
“[
is very difficult for the court to answer the questions without seeming to
either instruct the jury as to what they should find the facts to be or without
essentially presuming those facts to be the facts that they have found them to
be and I’m not at all certain that they are. It very well may be that’s what the jury has
decided the facts are in this particular case.
It may be that they are simply exploring their options in an attempt to
reach agreement.…†(Italics added.)
The court decided it had the
discretion to reopen argument based on Young
and rule 2.1036 “in the context of a situation where the jury clearly is having
difficulty resolving a particular issue and has repeatedly asked for assistance
on it … but has not formally said we are deadlocked and cannot reach a
verdict.†While the jury had not indicated
a deadlock, it had repeatedly reported that it was having difficulty with a
particular issue. The jury had submitted
four questions closely related to the same issue, and the questions showed it
was difficult for the jury to resolve the interplay of these factual and legal
concepts.
The court advised the attorneys
that they would have 10 minutes to argue the issues raised in the jury’s third
and fourth notes. The court also decided
to remind the jury to refer to the instructions that it had already
received. The court asked the prosecutor
and defense counsel if they agreed with the procedure. Both the prosecutor and defense counsel
agreed, and they did not object.
G.
The
court’s response to the jury
At 1:30
p.m. on January 21, 2011, the jury returned to the courtroom. The court advised the jury:
“Rather than the court directly answer your question[s]
because you’re asking us about a couple of legal concepts and I want to make
sure that you have adequate input on that.
Under certain circumstances the law does provide the court the
discretion to permit closing argument by the attorneys to be reopened even when
the jury has already been in deliberations for a period of time to deal just
with certain limited issues. And in an
effort to assist the jury and resolving the issues that they need to make a
determination on to resolve the case and attempt to reach a verdict.
“So
what we’re going to do in this particular case is the questions that you’ve
asked us obviously deal with a couple of different legal issues and you’ve
already received the instructions of law from that on the court. What I’m going to do – and we felt is the
most appropriate procedure here is I’m going to give the attorneys an
opportunity for ten minutes each to reopen their closing arguments to deal just
with those contents that you have discussed or asked us about in the two notes
that you’ve sent out.â€
The court
reminded the jury that it already had the instructions on duress, aiding and
abetting, and all of the other concepts in the case, and that it could refer to
those instructions when it resumed deliberations.
H.
The
parties’ additional closing arguments
The
prosecutor began his renewed argument by citing the jury’s third question about
duress, and argued that the duress defense did not apply to murder of any
degree. “Which means that if you find
that there was murder but that it was done under duress, it’s murder, whichever
degree it was.â€
As for the jury’s fourth question,
about aiding and abetting under duress, the prosecutor stated that he did not
know which facts the jury had decided, but offered different factual
scenarios. The prosecutor argued that an
aider and abettor was guilty of the same offense as the perpetrator of the
crime if he had knowledge of what the perpetrator was going to do, and he did
something to assist or encourage him. If
he did not know what the perpetrator was going to do, then he was not an aider
and abettor. The prosecutor argued that
defendant was an aider and abettor if the jury decided that Chema and his
associate existed, defendant knew they were going to kill Villagomez, and
defendant drove them to Wasco knowing of their intent. “They shoot the guy from the van. That would be murder and would be first
degree murder from the vehicle.… He had
knowledge. He assisted. Duress is not a defense. Therefore, he would be guilty of whatever
degree of murder you found it to be.â€
Defense counsel began his renewed
argument by asserting that the jury had to focus on the required mental
state. “What is in the mind of this man
when he’s in that van and he’s driving to Wasco. What is he thinking?†Defense counsel asserted that defendant did
not know what Chema intended to do to Villagomez. Defendant simply believed he was meeting with
Chema to return the drugs and money, and get out of the drug business with him.
Defense counsel argued defendant
did not share the same mental state, willfulness, and intent, as Chema and his
associate had to kill Villagomez.
Defendant had to have “the willful conduct of an individual, not someone
with a gun to the back .…†Chema
did not tell defendant what he was going to do in Wasco, so defendant did not
share the same intent or mental state.
Defense counsel agreed that duress
did not apply to murder. But counsel
also argued that defendant was driving under duress and did not know Chema’s
mental state:
“[Defendant] doesn’t know he’s going to go in and do the
act with Chema and the other guy. He
doesn’t know that. They know but he
doesn’t. That he’s not required [sic]
mental state. He’s not a part of that
transaction. He’s not part of that
behavior. He is not there. Physically he may be but the required mental
state is not there .… [¶] Was he truly acting under his own will or was
his will so overcome by the actions of others with their own purposes. Not shared by him. Not known to him. The required mental state. That’s the key.â€
Defense counsel argued defendant
likely believed Chema was going to kill him because he did not want to sell
drugs for him anymore, and defendant feared for his life as he drove them to
Wasco.
“How can someone be aiding and abetting if he has no
power of his own actions? How can
someone be aiding and abetting if he doesn’t know the purpose of the actions
he’s been forced to take? The required
mental state.â€
At 2:23
p.m., the jury resumed deliberations.
After the jury left the courtroom, the court asked the attorneys if they
wanted to place anything on the record.
They both declined.
I.
The
verdicts
At 10:13
a.m. on January 24, 2011, the jury returned with the verdicts, and found
defendant guilty of count I, first degree murder of Villagomez, and not guilty
of count II, attempted murder of Arrellano.
The jury found the special allegation not true, that defendant did not
personally and intentionally discharge a firearm.
J.
Analysis
Defendant
contends the court violated his constitutional
rights and committed reversible error because it “abdicated†its
responsibility to respond to the jury’s third and fourth questions, and instead
directed the attorneys to give further argument on the issues of murder, aiding
and abetting, and duress. Defendant
argues that further argument cannot take the place of the court’s mandatory
duty to directly respond to jury questions.
Section 1138 provides
that when the jurors “desire to be informed on any point of law arising in the
case,… the information required must be given .…†This statute imposes a mandatory duty for the
court to clarify any instructional confusion expressed by the jury. (People
v. Gonzalez (1990) 51 Cal.3d 1179, 1212-1213, superceded by statute on
another point as explained in In re
Steele (2004) 32 Cal.4th 682, 690.)
“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.] The trial court was
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.…†(People
v. Beardslee (1991) 53 Cal.3d 68, 97, italics in original.)
There are
several problems with defendant’s argument that the court “abdicat
| Description | Appellant/defendant Ramon Lopez Tapia sold drugs in Wasco. Augustine Villagomez and his girlfriend, Cecilia Saldana, purchased methamphetamine from him, but they were upset because they received a smaller quantity than they had paid for. A few days after the sale, Villagomez and defendant confronted each other in an alley and fired shots at each other. Defendant used a nine-millimeter handgun, and he was with a man who had a shotgun. No one was hurt. A few days after that shooting, defendant’s vehicle followed Saul Arrellano’s vehicle through Wasco; Arrellano was driving and Villagomez was in the front passenger seat. Arrellano had not been involved in the previous drug dispute. There were multiple gunshots fired from defendant’s vehicle into Arrellano’s car from two different weapons: a nine-millimeter handgun and a shotgun. Villagomez was killed from shots fired from the handgun, and Arrellano was wounded by shotgun pellets. After the homicide, defendant told a friend that, “ ‘[I]t’s done, I shot his head out,’ †and that Arrellano had not been the target. |
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