Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F08560
DAVIS, J.
A jury acquitted defendant Lovelle Marquis Chapman of first degree murder, convicted him of second degree murder, and found that he personally and intentionally discharged a firearm to cause the death. (Pen. Code, §§ 187, 12022.53, subd. (d).) Sentenced to prison for 40 years to life, defendant appeals.
Hereafter, undesignated section references are to the Penal Code.
We must reverse defendant’s second degree murder conviction (all firearm findings consequently fall as well). The trial court instructed the jury on three theories of second degree murder: malice aforethought; felony murder; and natural and probable consequences. The latter two theories were legally erroneous, and “there simply is no legitimate basis in the record for us to conclude the verdict necessarily was based on the valid legal ground of” malice aforethought. (People v. Sanchez (2001) 86 Cal.App.4th 970, 981 (Sanchez); People v. Smith (1984) 35 Cal.3d 798, 808 (Smith); People v. Bejarano (2007) 149 Cal.App.4th 975, 989-990 (Bejarano).) We shall remand for retrial on malice aforethought-based second degree murder.
Background
On the evening of September 27, 2003, Janessa L. threw a party at her house while her mother was away. Among others, two groups of people attended.
We will use the first names of the witnesses for privacy.
One group included defendant and five of his fellow high school football players (Jadrian R., Eddie T., Anthony E., Gabriel H. and Gary B.). Defendant went into a bedroom with his girlfriend, Linea, while Jadrian played dominoes at a table and the others sat in the living room.
The second group included Dawn H., her sister Debbie, as well as Lerone J., Molly W. and Pavil “Pasha” Voskoboinik, the victim in this case.
Lerone, who was drunk, asked Jadrian if he wanted to play dominoes. An argument soon erupted between the two.
Dawn told Lerone that the party host, Janessa, wanted Lerone to tell defendant’s group to leave (defendant was in the bedroom during this time). Lerone went to Jadrian, who was standing in the doorway, and obscenely told him that his group needed to go. Jadrian responded, “Hey Blood, I thought we were going to play dominoes.” Lerone was offended by this remark because he “claimed Crips.” A few threats and gang epithets were tossed back and forth, and Lerone challenged Jadrian to fight outside.
Eddie, Anthony, Gabriel and Gary (of defendant’s group) went to the doorway to check on the commotion outside. They saw members of Lerone’s group apparently surrounding Jadrian, and Lerone was holding a bottle menacingly. Debbie interceded when it appeared that Lerone would hit Jadrian with the bottle, and pushed Lerone back.
At this point, the two groups hurled profanities and gang epithets at one another.
Defendant’s group went back inside to get their sweaters and to retrieve defendant from the bedroom, and leave.
As defendant’s group prepared to leave, defendant displayed to Jadrian a handgun he had in his pocket.
Defendant’s group left, trading gang taunts with Lerone’s group outside. Lerone was still acting menacingly with his bottle.
Someone in defendant’s group apparently yelled that they would “come back and . . . deal with the situation.” The yelling between the groups simmered down when defendant’s group got about 20 feet away.
Defendant’s group left in a caravan as they had arrived. Eddie, driving his white pickup with Gary as his passenger, was the first to leave. They drove past the party scene without incident. Next came Gabriel, driving his black sedan with Anthony as his passenger. As they drove past the partygoers outside, they yelled “Beast Mob.” That left Jadrian, driving his Bronco SUV with defendant aboard. Just prior to the caravan leaving, Debbie and Dawn had seen Linea accompany defendant to the passenger side of the Bronco.
The Bronco drove slowly by the partygoers outside, with the passenger leaning out the window. A voice was heard yelling something like, “next nigga I hear say Cuz is getting popped--Beast Mob,” or “the next motherfucker to say something is gonna get popped.”
Lerone ran toward the Bronco, threw a bottle or can of beer at it, and then dove for cover as rapid firing erupted from the passenger, who was still leaning outside the vehicle’s side.
Evidence from witnesses at the scene, and from those in defendant’s group regarding his admissions that he was the shooter and regarding his actions in disposing of shell casings, showed that defendant was the shooter (although a neighbor witness and one party witness stated the shooter was wearing a white T-shirt, which Jadrian admitted was his attire that night). Defendant’s admissions to his confederates included that “he shot and was trying to shoot the black dude [i.e., Lerone]”; that “he shot and then he spazed [sic] and someone threw the bottle at the car and that’s why he started shooting again”; that he “just pointed and shot”; and that he “was mad that dude threw . . . the cans at him . . . . [¶] He aimed it at him . . . and he shot.” Four to six shots were fired.
Molly, who was part of the Lerone group that was standing outside Janessa’s house at the time of the shooting, saw the gunman pointing the gun in her direction. Pavil “Pasha” Voskoboinik was behind her. Molly dropped to the ground once the first shot was fired. Voskoboinik was killed by a bullet to the chest that traveled through his body “essentially horizontal[ly].”
In a statement to police, defendant said that Jadrian was the shooter, having fired out the window over defendant’s lowered head.
Discussion
Defendant raises several contentions on appeal. The dispositive one, however, is that the trial court erred prejudicially in instructing the jury regarding his conviction for second degree murder.
First, we provide a little background.
The jury was instructed on two theories of first degree murder: (1) express malice, premeditated murder (i.e., intent to kill, willful, deliberate and premeditated murder); and (2) first degree felony murder (a killing committed during certain statutorily enumerated felonies; here, the felony of discharging a firearm from a motor vehicle with intent to kill--§ 189).
The jury found defendant not guilty of first degree murder.
The jury was also instructed on three theories of second degree murder: (1) express or implied malice murder (respectively, intent to kill or knowingly dangerous act performed with conscious disregard for human life); (2) second degree felony murder (a killing committed during a felony deemed “inherently dangerous to human life” in the abstract; here, the felony of willfully discharging a firearm in a grossly negligent manner which could result in injury or death--§ 246.3, subd. (a)); and (3) natural and probable consequences murder (a reasonable person would deem the murder a natural and probable consequence of the grossly negligent firearm discharge).
The jury found defendant guilty of second degree murder, and found he personally and intentionally discharged a firearm and thereby proximately caused death (§ 12022.53, subd. (d)).
Defendant contends the trial court erred prejudicially in instructing on second degree felony murder and on second degree natural and probable consequences murder. We agree.
We begin with second degree felony murder. Defendant makes two points. First, that the felony underlying this murder theory--grossly negligent firearm discharge which could result in injury or death (§ 246.3, subd. (a))--is not a felony “inherently dangerous to human life” in the abstract. And second, that even if this felony is inherently dangerous, under the facts here it merged with the homicide and therefore could not serve as the underlying felony for purposes of felony murder.
Defendant’s first point is not well taken. The felony of grossly negligent firearm discharge which could result in injury or death (§ 246.3, subd. (a)) has been found to be an inherently dangerous felony for the purpose of the second degree felony-murder rule. (People v. Clem (2000) 78 Cal.App.4th 346, 351-354; see People v. Robertson (2004) 34 Cal.4th 156, 168-169 (Robertson); see also People v. Randle (2005) 35 Cal.4th 987, 1004-1005 (Randle).)
Defendant’s second point, on merger, is on point though. In People v. Ireland (1969) 70 Cal.2d 522, the state Supreme Court concluded that the defendant’s underlying felony there of assault with a deadly weapon merged with the resulting homicide and therefore could not serve as the underlying felony for a second degree felony-murder conviction. Ireland reasoned: “To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault -- a category which includes the great majority of all homicides [this is because the felony-murder rule operates to posit the existence of malice aforethought through the intent to commit the underlying felony]. This kind of bootstrapping finds support neither in logic nor in law.” (Ireland, supra, 70 Cal.2d at p. 539.)
Our state high court, in Robertson and Randle, recently has applied the Ireland merger rule to the issue, as here, of whether the trial courts before them had erred by instructing on second degree felony murder if the killing was committed through a grossly negligent firearm discharge in violation of section 246.3. (See Robertson, supra, 34 Cal.4th at p. 164; Randle, supra, 35 Cal.4th at p. 1005.)
Robertson concluded that the trial court there did not err in instructing on second degree felony murder because there was evidence, from the defendant’s own mouth, that he merely discharged his firearm into the air to frighten away several men who were burglarizing his car. (Robertson, supra, 34 Cal.4th at pp. 161-162, 171.) Consequently, evidence showed that the defendant had a “collateral purpose” in firing his weapon that resulted in the homicide and therefore the Ireland merger doctrine did not apply (there was also evidence, however, indicating that the defendant shot at the victim). When the purpose of the underlying felony is independent of or collateral to the resulting homicide, Robertson noted, instruction on second degree felony murder is appropriate because there is no merger--the felony-murder rule will serve its purpose of discouraging the commission of the underlying felony. (Robertson, supra, 34 Cal.4th at pp. 171, 162, respectively; see also People v. Mattison (1971) 4 Cal.3d 177, 185 [collateral purpose renders second degree felony-murder rule appropriate].)
By contrast, Randle concluded the trial court there did err in instructing on second degree felony-murder because the underlying felony of grossly negligent firearm discharge merged with the resulting homicide. In Randle, the defendant said he shot once in the air (as a warning) and then shot at the victim. Concluded Randle: “The fact that defendant admitted shooting at [the victim] distinguishes Robertson and supports application of the merger rule here”; in other words, that the defendant in Randle admitted shooting at the victim showed that he did not have an independent or collateral purpose in firing his gun that resulted in the homicide. (Randle, supra, 35 Cal.3d at p. 1005.)
The evidence before us aligns with Randle rather than Robertson. The evidence is overwhelming that the homicide here resulted from defendant firing at the crowd of partygoers outside the house, which included the victim, Voskoboinik. This evidence encompassed not only witness statements but defendant’s several admissions to his confederates stating as much, admissions confirmed by the physical evidence. The physical evidence showed a roughly horizontal alignment between the shooting vehicle on the street and the partygoers outside the house, and a horizontal trajectory of the fatal bullet through Voskoboinik’s chest. Like the defendant in Randle--while unlike the defendant in Robertson--defendant’s grossly negligent fatal firearm discharge did not have a purpose independent of or collateral to the resulting homicide. Accordingly, the trial court erred in instructing on second degree felony murder because the underlying felony--grossly negligent firearm discharge which could result in injury or death--merged with the homicide.
The People beg to differ. They have scoured the record to secure some snippets of evidence that they claim show that defendant fired shots into the air to intimidate, and therefore defendant had a collateral or independent purpose in discharging his weapon that may have resulted in the homicide. We are not persuaded.
The snippets of evidence are: Jadrian stated to defendant after the shooting, “I told you if you do shoot, to shoot in the air”; Debbie testified that when she saw the gun it was aimed at the sky; and defendant told Gabriel that “he shot and then he spazed [sic] and someone threw the bottle at the car and that’s why he started shooting again [and into the crowd],” which confirmed Gabriel’s description of the shot pattern as three shots, then a pause, and then two or three more.
From these snippets, the People argue that the jury could have inferred that the first three shots were not directed at the crowd, but into the air with the independent or collateral purpose of intimidation; and it was only after Lerone threw the can or bottle at the Bronco SUV that defendant fired at the crowd. The People continue that, given the evidence of an incline from the street to the front of the residence where the crowd was standing, it was plausible that even a shot intended to be shot in the air, but at an insufficiently steep angle, could have struck Voskoboinik.
There are two problems with the People’s argument. The snippets of evidence supporting the argument do not hold up; and neither does the argument’s analysis.
As for the snippets, Jadrian’s comment is not evidence that defendant shot into the air but, as defendant notes, a reproach for not having done so. Although Debbie saw the gun initially aimed at the sky, she did not see any actual shooting; she heard the first shot and ran into the house, which was just a few steps away. Defendant also told Gabriel that when he shot, he was trying to shoot “the black dude.” And the height difference between the street and the front of the house was about 42 inches, which would roughly align with the height of the passenger window of the Bronco driving on the street.
As for the analysis, the evidence here showed that any purported shot into the air was just that, a shot into the air that would not have resulted in a homicide to any of the partygoers standing outside the house. Also, the defendant in Randle admitted that he initially fired a warning shot into the air and then shot at the victim. (Randle, supra, 35 Cal.4th at p. 1005.) And Randle concluded: “The fact that defendant admitted shooting at [the victim] distinguishes Robertson and supports application of the merger rule here”; in other words, that the defendant in Randle admitted shooting at the victim showed that he did not have an independent or collateral purpose in firing his gun that resulted in the homicide, and this supported the application of the merger doctrine. (Ibid.) We must reach a similar conclusion given defendant’s similar admissions here of shooting at the victim.
We conclude the trial court erred in instructing the jury on second degree felony murder based on the underlying felony of grossly negligent firearm discharge (which could result in injury or death--§ 246.3, subd. (a)), because this underlying felony merged with the resulting homicide.
This error, however, was not the only one with respect to the instructions on second degree murder. As noted, in addition to malice aforethought murder and felony murder, the trial court instructed the jury on a third theory of second degree murder: natural and probable consequence.
The trial court instructed on this theory as pertinent:
“Before you may decide whether the defendant is guilty of second degree murder under the theory of natural and probable consequences, you must decide whether he is guilty of grossly negligent discharge of a firearm.
“To prove that the defendant is guilty of second degree murder under this theory the People must prove that:
“1. The defendant is guilty of grossly negligent discharge of a firearm.
“2. During the commission of grossly negligent discharge of a firearm the crime of murder was committed;
“AND
“3. Under all of the circumstances [established by the evidence], a reasonable person in the defendant’s position would have known that the commission of the murder was a natural and probable consequence of the commission of grossly negligent discharge of a firearm. [¶] . . . [¶]
“To decide whether the crime of second degree murder was committed, please refer to the separate instructions that I will give you on that crime.
“The People are alleging that the defendant originally intended to commit grossly negligent discharge of a firearm.
“The defendant is guilty of second degree murder if you decide that the defendant committed [grossly negligent discharge of a firearm] and that murder was the natural and probable result of [this] crime.”
This instruction was taken from CALCRIM No. 403, under which an aider and abettor may be convicted of a nontarget offense that was the natural and probable consequence of the target offense aided and abetted.
Here, defendant was not an aider and abettor, but the alleged direct perpetrator, and this case did not involve target and nontarget offenses, but simply a single charge of murder. California law, moreover, recognizes only three principal theories of second degree murder: (1) unpremeditated murder with express malice; (2) implied malice murder; and (3) second degree felony-murder. (People v. Swain (1996) 12 Cal.4th 593, 601-602 (Swain); see 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 163, pp. 777-778.) As such, the trial court’s instruction on a theory of second degree murder based on natural and probable consequences was inappropriate.
The only question remaining is the effect of the erroneous instructions on second degree felony murder and second degree natural and probable consequence murder.
Because these instructions misstated the elements of second degree murder, we must reverse the judgment unless the errors were harmless beyond a reasonable doubt. (Bejarano, supra, 149 Cal.App.4th at p. 989; see Swain, supra, 12 Cal.4th at p. 607.) This standard of harmless error calls for reversal unless it can be ascertained “‘that no juror relied on the erroneous instruction[s] as the sole basis for finding defendant guilty of murder.’” (Bejarano, supra, at p. 990, quoting Smith, supra, 35 Cal.3d at p. 808, italics added by Bejarano.)
We faced a similar issue of prejudicial effect in Sanchez, supra, 86 Cal.App.4th 970. There the trial court properly instructed on second degree implied-malice murder but also erroneously provided the alternative of second degree felony murder. In reversing the second degree murder conviction, we said in Sanchez:
“The jury was properly instructed on second degree murder based upon implied malice, and there is overwhelming evidence to support the murder conviction on that basis. . . . There is no reasonable doubt that [defendant’s] conduct demonstrates a wanton and conscious disregard for human life, i.e., implied malice, that justifies a conviction of second degree murder. [Citation.]
“But the fact remains that the jury was given an erroneous alternative, the second degree felony-murder rule, upon which to return a verdict of guilt. And the prosecutor used this theory to great advantage in closing argument, forcefully asserting that the jurors could ‘shorten [their] deliberations greatly because the felony murder is all you need to go to.’ It is conceivable that the jurors accepted this invitation and stopped deliberating after finding defendant guilty of second degree murder simply because he killed a human being while [committing the underlying felony], an erroneous legal theory. In other words, it is conceivable that the jurors did not even attempt to determine whether the evidence supported a finding of implied malice. Nothing in the general verdict form rules out this possibility. [Citation.]
“Thus, despite overwhelming evidence that defendant is guilty of second degree murder, there simply is no legitimate basis in the record for us to conclude the verdict necessarily was based on the valid legal ground of implied malice. (Cf. People v. Smith, supra, 62 Cal.App.4th at p. 1238; People v. Houts (1978) 86 Cal.App.3d 1012, 1021 [‘we cannot hold that the error did not affect the verdict because we simply have no way of telling’].) Accordingly, the trial court’s misinstructions on the elements of second degree felony murder require us to reverse defendant’s murder conviction and remand the matter for retrial on that charge. [Citation.]” (Sanchez, supra, 86 Cal.App.4th at p. 981.)
Much the same can be said here. The trial court properly instructed on second degree malice aforethought-based murder, and there is overwhelming evidence to support the murder conviction on the basis of implied malice murder. But the fact remains the jury was given the erroneous alternatives of second degree felony murder and second degree natural and probable consequence murder. And the prosecutor used these two erroneous theories to his advantage in closing argument, explaining: “And these two things [felony murder, and natural and probable consequence] are almost identical. It doesn’t matter which theory you go under. If you shoot a weapon . . . in a grossly negligent manner, which is a felony, . . . and that ends up killing somebody, . . . that’s a second degree murder . . . . [¶] [I]f a person in a grossly negligent manner discharged a firearm, . . . and during that discharge a murder was committed, and under all the circumstances a reasonable person would know that that might result in death, that person is guilty of murder under the second degree murder theory. . . . [¶] It’s not what the defendant actually believed but what a reasonable person would expect would be likely to occur.”
It is readily conceivable that jurors chose to convict defendant of second degree murder on the less demanding theories of felony murder or natural and probable consequence, making it unnecessary to consider the more difficult malice aforethought issue of what defendant was thinking when he pulled the trigger. In other words, it is conceivable that the jurors did not even attempt to determine whether the evidence supported a finding of malice. Nothing in the general verdict forms, or any other findings or determinations by the jury, rules out this possibility. (Sanchez, supra, 86 Cal.App.4th at p. 981; see also Bejarano, supra, 149 Cal.App.4th at p. 992 [reversing a second degree murder conviction because the jury may have convicted based on the erroneously instructed, less demanding theory of second degree felony murder which made it unnecessary to reach the issue of whether the defendant harbored malice].)
Although the verdict form here states the jury found defendant guilty of second degree murder “with malice aforethought,” the record shows this quoted phrase had no legal significance. This verdict form was part of a general, standard package of verdict forms of guilty/not guilty on first degree murder and second degree murder, and no one has argued, or even raised the issue, that the quoted phrase had any legal significance here. Furthermore, “a defendant who kills a human being during the commission of a felony that is inherently dangerous to human life [i.e., second degree felony murder] is deemed to have acted with malice aforethought[.]” (Sanchez, supra, 86 Cal.App.4th at p. 976, italics added.)
“[T]here simply is no legitimate basis in the record for us to conclude the verdict necessarily was based on the valid legal ground of” malice aforethought. (Sanchez, supra, 86 Cal.App.4th at p. 981.) Accordingly, the trial court’s misinstructions on second degree felony murder and on natural and probable consequence murder require us to reverse defendant’s second degree murder conviction and remand the matter for retrial on malice aforethought-based second degree murder.
The jury was instructed on two theories of first degree murder: (1) express malice, willful, deliberate and premeditated murder (with “express malice” and “willful” each defined as an intent to kill); and (2) first degree felony murder--murder committed by discharge of a firearm from a motor vehicle, requiring, as the jury was instructed, that defendant intentionally shot at a person outside the vehicle and intended to kill that person. The jury found defendant not guilty of first degree murder. In light of these instructions, this finding of not guilty, and the evidence here, some jurors, for example, may have found defendant not guilty of first degree murder because he lacked an intent to kill, while other jurors may have found defendant not guilty of first degree murder because defendant did not premeditate or deliberate and did not intentionally shoot at a person outside the vehicle (i.e., without ever considering the issue of intent to kill). Accordingly, a retrial of defendant may include second degree express malice murder (i.e., unpremeditated murder with an intent to kill) and second degree implied malice murder.
Disposition
The judgment is reversed. The matter is remanded to the trial court for further proceedings.
We concur: BLEASE, Acting P.J., MORRISON, J.
In light of our reversal, it is unnecessary to consider defendant’s other contentions on appeal.