Opinion
F034110
Filed August 12, 2002 Certified for Partial Publication REVIEW GRANTED November 13, 2002
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 2 through 10.
Appeal from a judgment of the Superior Court of Tulare County, No. 98-41328, Joseph A. Kalashian, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Marcos Chavez.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Guzman.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant Alejandro Prado.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PROCEDURAL HISTORY
An information was filed October 15, 1998, charging Marcos Chavez (Chavez), Jaime Guzman (Guzman) and Alejandro Prado (Prado) (collectively appellants) with multiple felonies. In count 1, appellants were charged with the murder of Marlene Romero (Romero), in violation of Penal Code section 187. It was specially alleged that the murder was intentional and was perpetrated by discharging a firearm from a motor vehicle with the intent to inflict death within the meaning of section 190.2, subdivision (a)(21). Counts 2, 3, 4 and 5 charged appellants with the attempted premeditated and deliberate murders of Ray P., Shalisa H., Celeste M. and Joseph A. in violation of sections 664 and 187. Appellants were charged in count 6 with discharging a firearm from a motor vehicle in violation of section 246. In count 7, Chavez was charged with permitting the discharge of a firearm from his vehicle in violation of section 12034, subdivision (b). As to counts 1 through 5, it was specially alleged that Prado and Guzman personally used a firearm within the meaning of section 12022.5, subdivision (a)(1), and they discharged a firearm from a motor vehicle causing great bodily injury within the meaning of section 12022.5, subdivision (b)(1). As to counts 1 through 5 it was alleged Chavez was armed with a firearm within the meaning of section 12022, subdivision (a)(1). As to count 2, it was specially alleged Guzman personally inflicted great bodily injury within the meaning of section 12022.7. As to count 3, it was specially alleged Prado personally inflicted great bodily injury within the meaning of section 12022.7.
All further statutory references will be to the Penal Code unless otherwise stated.
Jury trial began on June 28, 1999. On July 23, 1999, the jury returned guilty verdicts on all counts and found all special allegations to be true. Following the reading of the verdict, Guzman requested a declaration from the foreperson as to the theory agreed upon by the jury with respect to intent, but the court refused the request.
Chavez was sentenced to four consecutive terms of life with the possibility of parole on counts 2, 3, 4 and 5. Count 2 was enhanced by one year for the arming enhancement, while counts 3, 4 and 5 were each enhanced by four months for the arming enhancement. Chavez was sentenced to seven years on count 6, but the term was stayed pursuant to section 654. He was sentenced to eight months on count 7, to run consecutive to count 5. On count 1, Chavez was sentenced to life without possibility of parole, plus four months for the arming enhancement, to run consecutive to count 7.
Prado was sentenced to four consecutive terms of life with the possibility of parole on counts 2, 3, 4 and 5. Each count was enhanced by 10 years pursuant to section 12022.5, subdivision (b)(1). Count 3 was further enhanced by an additional three years pursuant to section 12022.7. On count 6, Prado was sentenced to two years, but the term was stayed pursuant to section 654. On count 1, Prado was sentenced to life without the possibility of parole, plus 10 years pursuant to section 12022.5, subdivision (b)(1), to run consecutive to count 5.
Guzman was sentenced to four consecutive terms of life with the possibility of parole on counts 2, 3, 4 and 5. Each count was enhanced by 10 years under section 12022.5, subdivision (b)(1), and count 2 was enhanced by an additional three years under section 12022.7. Guzman was sentenced to three years on count 6, but the term was stayed pursuant to section 654. On count 1, Guzman was sentenced to life without the possibility of parole, plus 10 years pursuant to section 12022.5, subdivision (b)(1), to be served consecutive to count 5.
Chavez, Guzman and Prado all filed timely notices of appeal.
FACTS
On November 22, 1997, at 8:45 p.m., Police Officer Christopher Bowersox was dispatched to North Second Street to investigate a report of shots fired in the area. When he arrived at the scene, Officer Bowersox was directed by several people to a residence on North Third Street. Officer Bowersox spoke with Prado, who lived at that location. In the backyard of the residence, Officer Bowersox found an expended shell casing on the ground near the garage. The casing was a .38-caliber, and was "extremely shiny" and very fresh as it had no dirt, moisture, or weathering of any kind on it. Officer Bowersox searched the house and found no weapons. One bedroom was locked and could not be searched.
Prado could not explain the casing in the backyard. He said he had heard shots while he was on the telephone. Neither Chavez nor Guzman were present at Prado's home at that time.
Earlier that same evening, at approximately 8:00 p.m., Joseph A., a high school student, was driving his father's brand new black, four-door 1997 Dodge Neon. Celeste M., Ray P. and Shalisa H. were also in the car. Celeste was in the front passenger seat. Ray was behind Celeste, and Shalisa was behind Joseph. They went to Taco Bell and Jack in the Box to get something to eat.
As they were driving on Olive Street, a metallic beige, four-door Honda Civic pulled up on the driver's side. There were five people in the Honda Civic, two in the front and three in back. Shalisa started talking to Alejandro "Big Alex" Prado (Big Alex), who was in the rear right seat. Chavez was also in the Honda Civic, either driving or sitting in the front passenger seat. At this time, Prado was not in the car.
"Big Alex" Prado is a cousin to appellant Prado.
Big Alex began arguing with Shalisa about her dating activities. Foul language was used. Big Alex had dated Shalisa. He gave her a dirty look and said something like, "Fuck you bitches" or "Bitches, you ain't nothing but ho's. You're with pussy ass guys." Big Alex and Chavez appeared angry because Shalisa was in a car with other males. Shalisa asked Joseph to pull over at the car wash so she could talk to Big Alex. The people in the Honda Civic were using hand signals to tell Joseph to pull over. They were giving the occupants of the Dodge Neon "mean" looks and cussing at Joseph. Joseph was not talking to the occupants of the Honda Civic or giving them dirty looks.
Shalisa got upset and "flipped off" Big Alex. The Honda Civic pulled into the car wash. Joseph pulled over at the car wash, and Shalisa got out to talk to Big Alex. However, the Honda Civic pulled away quickly and drove out of the parking lot. No words were exchanged.
Joseph then saw his friend Marlene Romero, who said she needed to go to the bathroom. Joseph offered to drive her to Jack in the Box. Romero sat in the back seat between Shalisa and Ray. After going to Jack in the Box, Joseph drove back to the car wash. Joseph, Celeste, Ray, Shalisa and Romero spent some time at the car wash as well as cruising up and down Olive Street. After "hanging out" for a while, Romero asked to use the restroom again, so Joseph drove her to the mini-mart on West Olive.
Upon returning to the car wash, Joseph and the others looked for Romero's brother so Romero could go home with him, but they could not find him. Joseph offered to give Romero a ride to the Strathmore area. On the way, they stopped at a donut shop at 12:25 a.m. so Celeste could use a pay phone. Joseph noticed the beige Honda Civic with three people in it pass by. Joseph drove down Olive Street once more looking for Romero's brother, and then drove toward Highway 65.
As they pulled out of the driveway at the donut shop, Celeste noticed two cars behind them. One was the Honda Civic she had seen earlier; the other was a dark gray or black car. Big Alex was driving the darker car. As Joseph got on the highway, the darker car made a U-turn and did not get on the onramp. As Joseph was driving north on Highway 65, both the darker car and the beige Honda Civic pulled up behind Joseph. Joseph was travelling in the right-hand lane at 55 to 60 miles per hour.
The Honda Civic then pulled up beside Joseph in the left lane. Joseph saw three people in the Honda Civic. The dark car pulled up directly behind Joseph. Celeste could not see who was driving the Honda Civic, but saw Prado in the front seat and Guzman behind Prado. Shalisa also saw Prado was in the front passenger seat. There was no conversation between the vehicles.
The Honda Civic pulled right alongside Joseph's car, bumper to bumper. No one in either car was flashing any signs or talking to anyone in another car and no one displayed any weapons. Big Alex was driving the darker car behind Joseph.
Seconds after the cars pulled up close to his car, Joseph heard shots being fired. Joseph looked back and saw that the shots were coming from the Honda Civic. Joseph saw flashes from guns from two separate places in the Honda Civic, the front passenger area and the rear right passenger area. Ray also saw flashes coming from the front and rear passenger section of the darker car. He saw a gun coming out of the front passenger window, and a flash from the gun.
Ray ducked and heard something ripping through the metal of the car. Celeste saw sparks coming out of the beige car and put her head down toward the corner of the door. She heard popping sounds. Joseph heard more than 10 shots. Shalisa ducked but was shot in the shoulder. Her head was between her knees, and she felt a hot, stinging pain in her back. It was later learned that the bullet entered her back, chipped a bone, hit her lungs, and then exited through her right armpit. The gunshots affected her hearing so that she could only hear a buzzing sound.
Joseph sped up. Shalisa complained that her arm was hurting. When the noise stopped, everyone sat up and began asking the others if they were okay. Romero did not sit up and did not answer. She was bleeding heavily. Ray felt a stinging pain in his back. He later learned a bullet had entered his torso, hit a rib, and exited.
Celeste looked back and saw the Honda Civic turn left off the highway just prior to the canal. Joseph started to drive faster. He heard screaming inside his car. Joseph could no longer see the darker car. Joseph turned on the light in the car and saw Romero and Ray had been shot. He drove to the hospital.
On the way to the hospital, Ray tried to hold Romero upright. Celeste kept talking to Shalisa because she kept passing out. Romero was breathing heavily, but then stopped breathing.
At the hospital, Dr. T. Scott Smith, the emergency room doctor on duty, found Romero still had a pulse and was still breathing. However, despite emergency treatment, she died shortly after arrival. Dr. Smith examined the bullet wound in Shalisa's back. It was a "through and through" wound which missed several major blood vessels and bony structures and damaged mostly soft tissue. Ray had a bullet wound in which the bullet struck a rib but did not damage the lung. Dr. Smith did not observe any signs of alcohol use on any of the victims.
Joseph was taken to another hospital, where his blood was drawn. The shooting occurred around 12:45 a.m., and the blood draw took place five and one-half hours later. Joseph was taking prescription cough medicine and pills to combat an infection. Joseph denied drinking any alcohol that night.
Ray had blood drawn at a hospital later that night. Ray stated he had had a "drink of a friend's beer," but testified Joseph was not drinking that night. Celeste also had blood drawn at a hospital. She had had a beer earlier in the evening, before she went out, but at the time of the shooting, the beer no longer affected her. Shalisa had also been drinking that night.
Sheriff's Detective James Hilger interviewed the four victims at the hospital. None appeared to be under the influence of alcohol.
Ray did not see any weapons in Joseph's car that night, although there was a baseball bat in the trunk. No one displayed the bat as a weapon that night.
A pathologist conducted an autopsy on Romero. She had two gunshot wounds to her head. There was an entrance wound on the left side of her head near her left eyebrow, and an exit wound in the right neck area. Romero bled to death from the gunshot wound.
Ray looked at a photographic lineup, but could not identify anyone. Shalisa identified Prado as the passenger in the car from which the shots were fired. Some time after the shooting, Celeste identified Prado and Guzman from photographic lineups. Celeste identified Guzman as sitting in the right rear seat. Neither Joseph nor Ray were able to identify anyone.
Police Officer Richard Wilkinson examined the black Dodge Neon at the hospital. He found bullet holes in the rear of the vehicle, around the trunk and the door. He also found a bullet in the crease of the back seat. Later he found another bullet on the ground where the car had been parked.
Sergeant Frank Bardone of the Tulare County Sheriff's Office was dispatched to the location of the shooting on Highway 65 at 1:13 a.m. on November 23, 1997. He closed off the highway to preserve the evidence. In the area, Sergeant Bardone found several shell casings and a lead core from a bullet. Sergeant Bardone testified the position of the shell casings led him to believe there were several shots fired from one location on the highway, a slight pause, and then another series of shots further down the highway.
Sergeant Bardone observed Joseph, Ray, Shalisa and Celeste at the hospital and none of them appeared to be under the influence of alcohol. After speaking to the victims at the hospital, he obtained the name of Prado as a suspect. He also received a description of the suspects' car as being a beige or tan Honda Civic. Sergeant Bardone examined the Dodge Neon and saw it had bullet holes, two in the trunk, one in the left rear wheel well and one in the quarter panel. The car had a flat tire and contained a large amount of blood.
Big Alex testified that his mother owned a two-door black Honda Accord in 1997, which he drove on occasion. On the night of the shooting, Big Alex went to Prado's house for a party. Prado and Guzman were present. When he discovered there was no beer in the house, he went to a store in Plainview. On the way there, Big Alex, who was accompanied by Guzman, picked up Chavez. They returned to Prado's house with beer. When they arrived at Prado's, they saw police cars, so they drove around the block until the police left. Prado did not give Big Alex a straight answer as to why the police had been at the house. At some point, Big Alex became aware that someone had been shooting a gun in Prado's backyard.
Big Alex and Chavez, along with two others, left the house to go cruising on Olive. At some point, a car with girls in the back pulled beside them and Big Alex tried to pick up one of the girls. The male driver of the car got upset. One of the girls in the car was Shalisa, whom Big Alex knew and had "gotten together" with. Big Alex saw someone's hand go up, but he was not sure if it was a gang sign. Chavez and Joseph exchanged words, but Big Alex could not recall what was said. However, Chavez was not happy. The driver of the other car invited them to follow them to the car wash so Big Alex and Shalisa could talk. There was too much of a crowd at the car wash, so Big Alex did not get out of the car and just left. Big Alex did not think Shalisa had flipped him off. Big Alex and the others in the car returned to Prado's house.
After being at Prado's for awhile, Big Alex left in his car with one other person and returned to Olive to look for girls. Big Alex saw Joseph's car again that night, but he did not "mad dog" anyone in the car. Big Alex also saw Chavez driving later that night. On the morning following the incident, Big Alex told the police Guzman and Prado were in Chavez's car with Chavez. At trial Big Alex testified he saw Chavez driving, but did not see who else was in the car. Big Alex saw Chavez's car side-by-side with Joseph's car on Olive getting on the onramp. Chavez directed Big Alex to follow them on to Highway 65, so Big Alex had to turn around to do so. Big Alex saw two cars side-by-side in the distance on the highway. He then saw Chavez's car speed off in another direction, while Joseph's car began to veer off the road as if it were crashing. Big Alex saw some flashes coming from Chavez's car, but he did not see any guns.
Big Alex followed Joseph's car for awhile, intending to help them if they crashed. Joseph's car ran a red light. Big Alex returned to Prado's house. When he arrived, Chavez's car was already parked there. Chavez was very scared, but Prado was acting normally. Guzman was relaxing on the couch. Big Alex asked what had happened, and they told him they had shot into the air. At some point, Chavez moved his car from the curb to the driveway behind the gate.
The police arrived at Prado's house an hour later. Big Alex, Prado, Guzman and Chavez were all arrested. Big Alex never saw any guns that night, and did not hide any guns used in the shooting.
Sheriff's Detective Thomas Ludwig went to Prado's house at 2:23 a.m. that morning. There was a black, two-door Honda Accord in the driveway. Detective Ludwig determined, via radio, that the vehicle belonged to Alejandro Prado (Big Alex) and Suzie Prado in Strathmore. There was a silver, four-door Honda Civic behind a chain link fence. The hood of the car was covered with a blanket. The hoods of both vehicles were warm. Big Alex, Guzman, Prado and Chavez were separated and transported to the sheriff's station.
Sheriff's Detective Allen Galloway searched the Honda Civic. He found a spent nine-millimeter shell casing in the car. He ordered residue testing on the right front passenger door.
The residences of Guzman, Chavez and Big Alex were searched. No weapons were found, but live ammunition and 12 spent .38-caliber shell casings were found at Big Alex's residence. Later, a nine-millimeter handgun was seized from Big Alex's residence.
Sheriff's Sergeant Brian Johnson testified that Detective Jim Schwabenland examined the black Dodge Neon and recovered bullets and an aluminum bat from the trunk. A gunshot residue test was performed on the Honda Civic on November 23, 1997, and sent to Los Angeles for testing. Further testing was done on the car a few days later. Gunshot residue tests were performed on each appellant in the early morning hours of November 23, 1997. The kits were also sent to Los Angeles for testing.
Detective Schwabenland died prior to trial.
The gunshot residue kits were examined by Steven Dowell, a criminalist in Los Angeles. Prado was found to have gunshot residue on his hands. This would indicate Prado either fired a gun, handled a gun recently fired, or came in contact with someone who fired a gun. No residue was found on either Chavez or Guzman. Gunshot residue was found on the inside right portion of the Honda Civic, but not on the right front exterior. Residue was also found on the right rear exterior, but not on the interior.
Detective Schwabenland lifted latent fingerprints from the Honda Civic, the Honda Accord and from Prado, Guzman and Chavez. Detective Ed Christopherson found Prado's prints matched a print found on the outside surface of the right rear door of the Honda Civic, near the door handle. None of the other prints matched.
Sheriff's Detective Jake Huerta took a statement from Guzman at 4:20 a.m. on November 23, 1997. Guzman waived his Miranda rights and corroborated Big Alex's version of events up to the point where Big Alex left to go cruising on Olive. Guzman claimed he stayed at Prado's house until the police arrested him. He denied any knowledge of a gun or the shooting.
Miranda v. Arizona (1966) 384 U.S. 436.
Detective Huerta spoke to Chavez at 6:11 a.m. on November 23, 1997. Chavez waived his Miranda rights and claimed he was at Prado's house for most of the evening until the police arrived. He denied going out cruising in any car that night.
Detective Hilger interviewed Prado. The interview with Prado took place at 12:13 p.m. on November 23, 1997, at a police station and was tape recorded. Prado waived his Miranda rights.
Prado told Detective Hilger he was home all night until he was arrested. He claimed his sister Elvelia could verify his alibi, and he gave Detective Hilger her phone number. He named others who could verify his alibi, but he was unable to provide any contact information for them. Detective Hilger gave Prado his card and asked him to have his alibi witnesses contact him, but they never did.
Mindy Sciutto worked at a restaurant with Prado's sister Elvelia. Elvelia told Sciutto she went to her brother's house after the police had searched it on November 29, 1997, and found a gun in her parents' sock drawer. A bullet had been shot out of the gun. Elvelia said she wanted to throw the gun in the river or turn it in. Detective Arnold interviewed Elvelia, who denied Sciutto's story about the gun.
Elvelia invoked her privilege against self-incrimination and was not available as a witness at trial.
Detective Arnold spoke to Celeste about some telephone calls she had received, starting on November 27, 1997. The caller identified himself as Prado, calling from jail. Prado told Celeste that she had not seen him, but she said she had. Computerized jail records showed that no call was ever placed to Celeste. However, a call was made by Prado to his sister, in which Prado gave his sister Celeste's telephone number and instructed her to call Celeste. In that conversation, Prado also asked his sister whether a gun had been found. Prado instructed his sister to set up a three-way conference call with Daniel T., who had been in custody with Guzman in Kern County.
Sheriff's Officer Tim Hudson spoke to Guzman when he was initially booked. Guzman waived his Miranda rights and said he was in a car with Chavez, that there was a gun in the car, but that neither he nor Chavez fired the gun. Officer Hudson also spoke to Chavez who waived his Miranda rights. Chavez admitted driving the car and that there were two guns in the car. Chavez claimed that when they went to look for the Dodge Neon, he had no knowledge there were guns in the car, but he admitted that shots were fired at the Dodge Neon.
Daniel T. was in custody at juvenile hall and spoke to Guzman about the shooting. Guzman told Daniel he was in custody for a drive-by shooting and that he was the shooter. He also said that they meant to shoot some guys but a girl was in the crossfire.
District Attorney Investigator Vickie Currier spoke to Daniel, who claimed Guzman told Daniel that he was the shooter. In addition, she spoke with Barry M., who also claimed Guzman told him he was the shooter. Barry said his cellmate, Chavez, was the driver and did not know there were any guns in the car, but that he was just going to fight some other guys.
Barry testified he was in custody in 1997 with some individuals who were discussing a drive-by shooting. Barry spoke to a female investigator prior to trial. Barry's cellmate, who he believed was Chavez, was involved in the shooting and talked about the shooting a little bit. At trial, Barry could not remember the initial conversation, nor could he recall what he told the investigator. Barry denied knowing Guzman and denied speaking to him about the murder. Barry denied making various statements to Investigator Currier and claimed not to remember other statements.
Detective Arnold participated in the search of Prado's house. He found a nine-millimeter gun in the attic.
Celeste testified that a few days after the shooting, Prado called her but initially identified himself as someone else. After giving his identity as Prado, he told her, "'You didn't see me in there.'" Celeste responded, "Yeah, I did see you. I looked straight at you."
Department of Justice Criminalist Stephen O'Clair examined the physical evidence in the case to determine bullet trajectories and the order of fire. O'Clair determined that two weapons fired at the Neon, and that the bullets which hit Romero and Ray were fired from the same weapon. O'Clair opined that the nine-millimeter bullet hit Shalisa. O'Clair concluded that four bullets hit the Neon, and that at least three bullets fired missed the car altogether. He could not reconcile the apparent trajectory of the bullets with the wound to Romero based on the reports of how the victims were seated in the car.
The nine-millimeter pistol found at Prado's residence did not fire any of the bullets in connection with the crime. O'Clair examined another pistol, a nine-millimeter Luger, and concluded it probably did not fire the nine-millimeter bullet found in the Neon. All of the .38 cartridges found at the scene were fired from the same gun that fired the .38 cartridges found in Prado's backyard.
Roger Peterson, a forensic toxicologist, examined the blood samples. Big Alex, Prado, Celeste, Ray, Joseph and Chavez had no alcohol or drugs in their blood. Shalisa had no drugs, but had a blood-alcohol level of 0.09 percent at 5:50 a.m. on November 23, 1997. Peterson opined that at 1:00 a.m., her blood-alcohol level would have been approximately 0.19 percent. Guzman had methamphetamine in his blood, indicating recent drug usage. He had no alcohol in his system.
Leticia Chavez, Chavez's mother, was working on the night of the shooting. Around 11:00 p.m., Chavez came to his mother's workplace and picked up her 1997 silver Honda Civic, saying he needed it to get home. Leticia knew her son was not old enough to drive, but she allowed him to use the car anyway. There were no guns or bullets in her car when she gave it to him. Leticia had previously seen her son with Prado.
Defense
A private investigator, Gordon Scott Dinkins, testified that he had interviewed Barry M., who told him Chavez had said he did not know about the guns but that he just thought there was going to be a fight. Chavez was reported to be scared and shocked once he heard gunshots.
Chavez testified in his own defense. He stated that when he, Big Alex and Esquivel were driving, the people in the Dodge Neon started to get mad at them. Chavez stated he pulled into the car wash, as instructed by the person driving the Neon, but left when a large group of people approached their car. Chavez stated they returned to Prado's house for awhile, and then went cruising on Olive with Prado and Guzman. Chavez testified the driver of the Dodge Neon told him to follow him, so he did, on to Highway 65. Chavez stated that when they were on the highway, the girl in the back seat stuck her hand out of the window with what looked like a gun. Chavez put on the brakes and turned quickly. He heard a gunshot, then looked to his side and saw Prado bringing a gun into the car. Chavez looked behind him and saw Guzman shooting. Chavez stated Prado was sitting in the right front seat. Guzman was sitting in the right rear seat.
Chavez testified he was willing to fight the driver of the Dodge Neon. He also testified both Guzman and Prado had guns. Chavez admitted placing a cloth on the hood of his car to conceal it from the police. Guzman told Chavez he did not mean to shoot anyone. Chavez admitted he never told the police he thought the victims had a gun.
Chavez claimed he did not know of the guns until the shooting started. However, later in his testimony, he was equivocal as to whether he saw a gun being brought into the car when he, Prado and Guzman left Prado's house. Chavez also gave inconsistent testimony about whether he discussed the first encounter with the Dodge Neon while at Prado's house with Prado and Guzman. He acknowledged telling police that the three of them left the house to look for the Neon. In his statement to the police, Chavez had stated he and Prado and Guzman planned to beat up the guys in the Dodge Neon, but he denied planning the shooting.
Guzman testified in his own defense. He stated he had known Prado for two years, and had stayed at Prado's house for two days prior to the shooting. Guzman testified that Prado had never shown him any firearms prior to the day of the shooting. Guzman had previously been shooting with his uncle, but he did not have a firearm on the day of the shooting. Guzman stated that when Chavez returned after his first encounter with the Dodge Neon, Chavez did not mention any confrontation. Guzman denied Chavez asked for help to "go out and kick someone's ass." Guzman claimed that when he and Chavez and Prado got into the car to go cruising, he was unaware of any guns in the car.
Guzman denied there was a plan to look for the Dodge Neon. Guzman claimed that Chavez at no point indicated he had a problem with anyone in another car. According to Guzman, the three simply ended up on the highway following the Dodge Neon. No one in the Dodge Neon was yelling anything at them. When they pulled up beside the Dodge Neon, Guzman saw a gun sticking out of the back passenger area of the Dodge Neon, pointed at them. Later he admitted he was uncertain whether he had seen a gun. Guzman stated he scooted over in the seat, away from the window nearest the Dodge Neon. He heard gunshots coming from the Dodge Neon and also from the front of the vehicle he was in. Guzman stated he found a gun between the front seats and picked it up. He stuck the gun out the window and fired it without aiming at anything. He did not intend to hurt or kill anyone. Guzman testified he did not remember whether he left the gun in the car or brought it back into Prado's house when they returned.
Guzman testified that during the entire night of the shooting, he consumed a total of five beers. Guzman denied speaking with Officer Hudson, Daniel T., or Barry M. Guzman denied hearing Chavez say anything about a black Neon prior to the shooting.
Rebuttal
Chavez told Detective Arnold that upon returning to Prado's house after the shooting, he saw Guzman hand the gun to Prado. Chavez told his friends to get rid of the guns.
DISCUSSION
1. Prado, Guzman and Chavez Contend the Homicide Instructions Were Legally Erroneous, as They Were Internally Inconsistent and Unintelligible When Viewed as a Whole
Section 187 defines the crime of murder as the "unlawful killing of a human being with malice aforethought." (§ 187, subd. (a).) Malice aforethought "may be express or implied." (§ 188.) "It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." ( Ibid.) Proof of unlawful "intent to kill" is the functional equivalent of express malice. ( People v. Swain (1996) 12 Cal.4th 593, 601.)
Section 189 states, in relevant part:
"All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree."
First degree murder was presented to the jury on two theories: premeditated and deliberated murder with express malice, and "drive-by" murder, or "murder perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death." Second degree murder was presented to the jury on the theories of implied malice, intentional discharge of a firearm from a vehicle with the specific intent to inflict great bodily injury, second degree felony murder, and a theory of natural and probable consequences.
Appellants contend the trial court erred in instructing the jury on first degree felony murder as the drive-by shooting component of section 189 is not an enumerated felony under the felony-murder rule. Specifically, they argue that section 189, which specifies that "any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree" presupposes that the jury first find "murder," i.e., malice aforethought. Appellants contend section 189 is only to be used to fix the degree of murder once malice has been established. In other words, appellants claim the jury was never told it must first find appellants guilty of murder with malice aforethought before considering whether the killing was committed as a drive-by shooting, rendering the crime murder of the first degree.
Respondent argues that the drive-by shooting clause in section 189 is intended to operate as the functional equivalent of an enumerated felony under the felony-murder rule, and the trial court's instructions were therefore correct. Assuming arguendo that the drive-by shooting clause of section 189 does not define an additional count of felonious conduct for purposes of the felony-murder rule, respondent contends the jury necessarily found malice, and subsequently no prejudice resulted from the giving of the instructions.
Appellants' argument presents two distinct questions: (1) does the drive-by shooting clause of section 189 define an additional enumerated felony within the felony-murder rule; and (2) were the instructions, as given, internally inconsistent and, if so, were they prejudicial. We address each issue in turn.
A. Is the drive-by shooting clause of section 189 an enumerated felony for purposes of the felony-murder rule?
No case authority appears to exist which addresses the issue of whether the drive-by shooting clause of section 189 creates an additional enumerated felony for purposes of the felony-murder rule. Various cases have addressed components of the argument. From these cases, from the language of the statute itself and from the legislative history of the clause, it appears that the drive-by shooting provision of section 189 is not an enumerated felony for purposes of the felony-murder rule, but does eliminate the element of premeditation to find first degree murder. The clause creates somewhat of a hybrid, requiring that there be a finding of intent to inflict death while firing intentionally from a vehicle at another person outside of the vehicle.
For purposes of this discussion, we will begin with the explanation in People v. Rodriguez (1998) 66 Cal.App.4th 157, 163-164 that section 189 establishes three categories of first degree murder:
"Section 189 first establishes a category of first degree murder consisting of various types of premeditated killings, and specifies certain circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Section 189 secondly establishes a category of first degree felony murders (murders perpetrated during felonies or attempted felonies such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category consisting of only one item, intentional murder by shooting out of a vehicle with intent to kill."
We will refer to the three different clauses of section 189 as differentiated above.
Respondent contends that a killing committed in the course of a drive-by shooting fits within the second clause; that it adds to the list of enumerated felonies within the felony-murder rule. In order to address this argument, we first explain the felony-murder rule and its purpose.
Under the felony-murder rule, a killing, whether intentional or unintentional, is first degree murder if committed in the perpetration of, or the attempt to perpetrate, certain serious felonies. (1 Witkin Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 134, p. 750.) The ordinary elements of first degree murder — malice and premeditation — are eliminated by the doctrine. The only criminal intent required to be proved is the specific intent to commit the particular underlying felony. ( Id., § 135, pp. 750-751.)
The difference between deliberate, premeditated first degree murder and that of first degree felony murder has been explained by our high court as follows:
"As pertinent here, '[a]ll murder which is perpetrated by any kind of willful, deliberate, and premeditated killing is murder of the first degree.' (Pen. Code, § 189.) The mental state required is, of course, a deliberate and premeditated intent to kill with malice aforethought. (See id., §§ 187, subd. (a), 189.)
"Similarly, '[a]ll murder which is committed in the perpetration of, or attempt to perpetrate,' certain enumerated felonies [enumerated in Penal Code section 189] 'is murder of the first degree.' (Pen. Code, § 189.) The mental state required is simply the specific intent to commit the underlying felony; neither intent to kill, deliberation, premeditation, nor malice aforethought is needed. [Citations.] There is no requirement of a strict 'causal' [citation] or 'temporal' [citation] relationship between the 'felony' and the 'murder.' All that is demanded is that the two 'are parts of one continuous transaction.' [Citations.] There is, however, a requirement of proof beyond a reasonable doubt of the underlying felony. [Citation.]" ( People v. Berryman (1993) 6 Cal.4th 1048, 1085, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
As this description demonstrates, "'[f]elony murder and premeditated murder are not distinct crimes; rather, they constitute "two kinds of first degree murder" requiring different elements of proof.'" ( People v. Davis (1995) 10 Cal.4th 463, 514.) "'Under well-settled principles of criminal liability a person who kills — whether or not he is engaged in an independent felony at the time — is guilty of murder if he acts with malice aforethought. The felony-murder doctrine, whose ostensible purpose is to deter those engaged in felonies from killing negligently or accidentally, operates to posit the existence of that crucial mental state — and thereby render irrelevant evidence of actual malice or the lack thereof — when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.' [Citations.]" ( People v. Hansen (1994) 9 Cal.4th 300, 308 (maj. opn. of George, J.); but see id. at p. 321 (conc. and dis. opn. of Mosk, J.) [felony-murder rule does not impute element of malice aforethought, it omits it].)
As explained in People v. Ireland (1969) 70 Cal.2d 522, 538, written before a number of felonies were added to the felony-murder doctrine:
"The felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of those six felonies specifically enumerated in section 189 of the Penal Code. [Citations.] Thus, 'A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder.' [Citation.]"
The purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally. (See People v. Smith (1984) 35 Cal.3d 798, 803.) Ordinarily, the felony-murder rule is inapplicable when based on a felony which is an integral part of and included in fact within the homicide. ( People v. Hernandez (1985) 169 Cal.App.3d 282, 287-288.) For example, the doctrine does not apply where the purpose of the underlying felony is assault which results in death. ( People v. Ireland, supra, 70 Cal.2d at pp. 538-540.) The doctrine may apply even if the felony was included in the facts of the homicide, and was integral thereto, if that felony was committed with an independent felonious purpose. For instance, in the case of an armed robbery, the underlying purpose is to acquire money or property belonging to another. ( People v. Smith, supra, 35 Cal.3d at pp. 805-806; People v. Hernandez, supra, 169 Cal.App.3d at p. 288.)
Our Supreme Court in People v. Dillon (1983) 34 Cal.3d 441 fully explained the history of felony murder when the defendant challenged the basis of the felony-murder rule and asked that the court abolish it as a holdover from the common law. The Dillon court, after an exhaustive analysis, declined and concluded that the term "murder" in section 189 has more than one meaning. For those murders in the first clause (premeditated and deliberate murders), murder is the term of art generally accepted in criminal law, i.e., a killing with malice aforethought. "Murder" as it is used in the second clause (felony murder), means simply "killing," with no malice component. ( Id. at pp. 472-476; see also People v. Hernandez, supra, 169 Cal.App.3d at p. 287.)
In Dillon, the court in a footnote observed that:
"We recognize that from the standpoint of consistency the outcome of this analysis leaves much to be desired. Although the misdemeanor-manslaughter rule is plainly a creature of statute (Pen. Code, § 192, par. 2), we reach the same conclusion as to the first degree felony-murder rule only by piling inference on inference; and the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code (see People v. Phillips (1966) 64 Cal.2d 574, 582, and cases cited). A thorough legislative reconsideration of the whole subject would seem to be in order." ( People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19.)
Despite this invitation to clarify the matter, the Legislature has not done so in the almost 19 years since Dillon was decided. The clause at issue was added in 1993, long after the analysis of Dillon.
To determine whether the drive-by shooting clause of section 189 falls within the felony-murder clause of section 189, we interpret the clause in light of well-established principles of statutory construction. The starting point for statutory construction is "the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent." ( People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) Penal Code sections must generally be construed "'according to the fair import of their terms, with a view to effect [their] objects and to promote justice.'" ( In re Smith (1966) 64 Cal.2d 437, 440.) Consistent with that general principle, it is necessary to examine at the outset the language of the code section to determine if the words used unequivocally express the Legislature's intent. ( People v. Woodhead, supra, at p. 1007; People v. Craft (1986) 41 Cal.3d 554, 560.) "If no ambiguity, uncertainty, or doubt about the meaning of the statute appear, the provision is to be applied according to its terms without further judicial construction. [Citation.]" ( Morse v. Municipal Court (1974) 13 Cal.3d 149, 156.) However, when language in the statute is unclear, ambiguous or susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, and the statutory scheme of which the statute is a part. ( People v. Bartlett (1990) 226 Cal.App.3d 244, 250.)
Applying these principles of statutory construction to the provision at issue in the present case, "we find that the language of the code itself carries us a considerable distance." ( Morse v. Municipal Court, supra, 13 Cal.3d at p. 156.) Although the drive-by shooting clause is listed immediately following the enumerated felonies included in the felony-murder rule, it is distinct in that it requires an "intent to inflict death" not required in the preceding felonies by operation of the felony-murder rule.
This interpretation has been followed, albeit in dicta, in several cases. As the court in Rodriguez, supra, explained, section 189 requires that the shooting out of a vehicle be both "'intentionally at another person'" and "'with the intent to inflict death.'" ( People v. Rodriguez, supra, 66 Cal.App.4th at p. 164, fn. 5.) In Rodriguez, the defendant and the victim, in separate cars, had had an argument in a parking lot. The victim tried to leave the scene, but the defendant pursued him and shots were fired. The victim died as a result of the shooting. No gun was found in the victim's car. ( Id. at p. 162.) The defendant was convicted of first degree murder, based on grounds of intentionally shooting from a vehicle with the intent to kill. ( Id. at p. 163.) The issue in Rodriguez was the constitutionality of section 190.2, subdivision (a)(21), which allowed for the defendant's sentence of life without possibility of parole based on an unpremeditated murder. ( Id. at pp. 164-166)
In People v. Sanchez (2001) 26 Cal.4th 834, the defendant was in a car when he shot at a rival gang member, Gonzalez, who returned fire. A bullet hit and killed an innocent bystander. The defendant and Gonzalez were both charged with murder and it was specially alleged, as to the defendant, that the murder was committed by discharging a firearm from a motor vehicle (§§ 187, 12022.55). The prosecution proceeded on two theories: as to both the defendant and Gonzalez, premeditated first degree murder; in addition, as to the defendant, first degree murder perpetrated by means of intentionally discharging a firearm from a motor vehicle with the specific intent to inflict death, pursuant to section 189. ( People v. Sanchez, supra, at p. 838.) The issue in Sanchez, which is not at issue here, was one of concurrent causation or transferred intent in a single-fatal-bullet case. ( Id. at p. 839.) However, one of the court's statements is helpful to our analysis. Our high court stated,
"Although in this case it could not be determined who was the direct or actual shooter of the single fatal round, the evidence, with all reasonable inferences drawn in favor of the guilty verdicts, supports a finding that defendant's commission of life-threatening deadly acts in connection with his attempt on Gonzalez's life was a substantial concurrent, and hence proximate, cause of [the victim's] death. All that remained to be proved was defendant's culpable mens rea (premeditation and malice) in order to support his conviction of premeditated first degree murder. Even without a showing of premeditation, if defendant was shown to have intentionally discharged his firearm from a motor vehicle with the specific intent to inflict death, then his crime was murder in the first degree by operation of section 189 ." ( 26 Cal.4th at pp. 848-849, italics added.)
Our Supreme Court in Sanchez further discussed the drive-by shooting clause of section 189 in several footnotes. At one point, the court stated, "In defendant's case, the question of premeditation aside, if he was found to have intentionally discharged a firearm from a motor vehicle with the specific intent to inflict death, then by operation of section 189, such circumstance afforded a separate basis for the first degree murder conviction." ( People v. Sanchez, supra, 26 Cal.4th at p. 851, fn. 10.) At another point, the court stated, "As we have noted, under the provisions of section 189, on which the jury was also instructed, defendant need not have been found to have acted with premeditation in order to be held liable for first degree murder on a finding that he intentionally discharged his firearm from a motor vehicle with the intent to inflict death." ( Id. at p. 853, fn. 11.)
Respondent argues that one court, at least in dicta, seems to have concluded shooting from a vehicle is an enumerated felony within the felony-murder rule. In People v. Baker (1999) 74 Cal.App.4th 243, the defendants were charged with murder, attempted murder, assault with a deadly weapon, conspiracy to commit assault with a deadly weapon and residential burglary. ( Id. at p. 247.) 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. ( Id. at p. 248.) The court in Baker agreed and reversed the judgment. ( Ibid.) As explained by the court in Baker:
"[T]he only way a conspiracy to commit an assault with a deadly weapon may result in a first degree murder is if a conspirator is guilty of first degree murder as set forth in section 189. In the present case, the murder was not committed by use of an explosive device, armor-piercing ammunition, poison, lying in wait, or torture. Nor was it committed in the course of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, various sex crimes, or shooting from a vehicle. Therefore, the only possibility of a 'fit' under section 189 is if one of the conspirators was found to have committed a 'willful, deliberate, and premeditated murder.' Any instruction to the contrary was error." ( 74 Cal.App.4th at p. 250, fn. omitted, italics added.)
This particular language in Baker, however, cannot be read to make "shooting from a vehicle" an enumerated felony for purposes of the felony-murder rule. One further note, Baker and Rodriguez were both decided by the Second Appellate District, Division Two. To read into Baker what respondent wishes us to would seem to fly in the face of what the court stated earlier in Rodriguez.
For a more definitive meaning of the statute, we can look to relevant legislative history. Senate Bill No. 310 was enacted in 1993, amending sections 189, 190 and 12022.5. (§ 189, as amended by Stats. 1993, ch. 609, § 1, p. 3265.) Senator Ayala introduced the bill, stating the following, in pertinent part:
"Existing law describes murder of the 1st degree as all murders which, among other things, are committed in the perpetration of, or attempt to perpetrate, certain enumerated felonies and specified sex crimes. [¶] This bill would add to the list of specified crimes a murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death." (Legis. Counsel's Dig., Sen. Bill. No. 310, 5 Stats. 1993 (1993-1994 Reg. Sess.) Summary Dig., p. 236.)
When the bill was signed by Governor Wilson on September 29, 1993, Governor Wilson issued the following signature message regarding Senate Bill No. 310 (Stats. 1993, ch. 609):
"To the Members of the California Senate:
"I have signed this date Senate Bill No. 310 which I have sponsored.
"This bill adds intentional drive-by killing to the first degree murder statute and increases the penalty for second degree drive-by murder by five years to twenty years to life. Additionally, this bill imposes a sentence enhancement of up to five years for the use of the firearm.
"This bill represents substantial progress in the effort to curb and punish senseless acts of violence perpetrated on innocent, and often random, victims.
"The codification of drive-by killing in the first degree murder statute allows prosecutors to convict drive-by assassins upon proof of a specific intent to kill. The penalty for this act of cowardice in the first degree can be as high as 30 years to life with the application of the penalty enhancement provided in this bill." (Historical and Statutory Notes, 47A West's Ann. Penal Code (1999 ed.) foll. § 189, p. 93.)
Several observations and conclusions may be derived from the legislative history of the drive-by shooting clause of section 189. Although Senator Ayala's statement seems to add drive-by shooting to a list of other felonies, it is also accompanied by the wording requiring a finding of an "intent to inflict death," thereby necessarily differentiating it from the rest of the list of felonies. In addition, drive-by shooting is itself not a felony in the traditional sense in that it is not neatly labeled as a crime, such as carjacking or robbery, and it is not identified in a specific section of the Penal Code, as are the specific sex crimes listed in section 189. (See, e.g., §§ 206, 211, 215, 288.) Governor Wilson's statement also makes clear that the conduct is differentiated from the other felonies listed in that it includes the need of "proof of a specific intent to kill."
Finally, when a penal statute is susceptible of two reasonable constructions, it must be construed "as favorably to the defendant as its language and the circumstances of its application may reasonably permit." ( Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.) "Strict construction of penal statutes protects the individual against arbitrary discretion by officials and judges and guards against judicial usurpation of the legislative function which would result from enforcement of penalties when the legislative branch did not clearly prescribe them." ( People v. Overstreet (1986) 42 Cal.3d 891, 896.)
Accordingly, we find that the drive-by shooting clause which was added to section 189 in 1993 is not an enumerated felony for purposes of the felony-murder rule. We further find that although premeditation is not required for a finding of guilt of first degree murder under this clause of the section, a finding of "a specific intent to kill" is required. As noted above, proof of unlawful "intent to kill" is the functional equivalent of express malice. ( People v. Swain, supra, 12 Cal.4th at p. 601.)
B. Were the jury instructions as given internally inconsistent and incorrect, and if so, were they prejudicial?
Appellants next contend that the instructions presented to the jury on the theory of felony murder were incorrect and inconsistent. The trial court instructed the jury with a modified version of CALJIC No. 8.21, defining felony murder, as follows:
"The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs during the commission or attempted commission of the crime of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle, when the perpetrator specifically intended to inflict death, is murder of the first degree when the perpetrator had the specific intent to commit that crime. The specific intent for that crime and the commission or attempted commission of such crime must be proved beyond a reasonable doubt."
The jury was further instructed with a modified version of CALJIC No. 8.27 (1998 rev.), which defined felony murder under an aider and abettor theory, as follows:
"If a human being is killed by any one of several persons engaged in the commission or attempted commission of [the crime of] discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle with the intent to inflict death, all persons who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of admitting, encouraging or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or device its commission, are guilty of murder in the first degree, whether the killing is intentional, unintentional or accidental. [¶] In order to be guilty of murder as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the discharging of a firearm from a motor vehicle intentionally at another person outside of the vehicle with the intent to inflict death at the time the fatal wound was inflicted. [¶] However, an aider and abettor may still be jointly responsible for the commission of the underlying felony based upon other principles of law which will be given to you."
Appellants are correct. In light of the discussion above, felony-murder instructions were not appropriate in this situation. Furthermore, the felony-murder instructions that were given were modified and contained confusing and contradictory language.
In essence, the jury was given conflicting instructions on the mental state element of the alleged offenses. Such instructions can act to remove the necessary mental state element of an alleged offense from the jury's consideration, and as such, the instructions constitute a denial of federal due process and invoke the Chapman v. California (1967) 386 U.S. 18 "beyond a reasonable doubt" standard for assessing prejudice. ( People v. Guiton (1993) 4 Cal.4th 1116, 1130; People v. Lee (1987) 43 Cal.3d 666, 673-674; People v. Self (1993) 12 Cal.App.4th 1222, 1226-1227.)
In Lee, the alleged offense was attempted murder, which requires the mental state element of a specific intent to kill. ( People v. Lee, supra, 43 Cal.3d at p. 670.) The trial court in Lee instructed the jury on this requirement element, but also provided "implied malice" instructions which permitted dispensing with an actual specific intent to kill. ( Id. at pp. 669-670.) The high court in Lee concluded that the appropriate standard of review in determining whether such instructional error is prejudicial is the "harmless beyond a reasonable doubt" test for federal constitutional errors. ( Id. at p. 674; Chapman v. California, supra, 386 U.S. at pp. 24-25.) As the Lee court explained, "[C]onflicting instructions, which appear to require a specific intent to kill but which eliminate that requirement where implied malice is found, are closely akin to instructions which completely remove the intent issue from the jury's consideration: If the implied malice instructions are followed, the issue of intent may indeed be removed from the case." ( People v. Lee, supra, 43 Cal.3d at p. 674.)
Similarly, if some jurors here chose to follow parts of CALJIC Nos. 8.21 and 8.27 regarding the murder offenses, particularly focusing on the "unintentional or accidental" language of those instructions, this could have removed the mental state element from these offenses. Consequently, we must determine whether the error in giving these instructions was harmless beyond a reasonable doubt.
In making this determination of harmlessness, we must ask "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" ( Yates v. Evatt (1991) 500 U.S. 391, 402-403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4; Chapman v. California, supra, 386 U.S. at p. 24.) And "[t]o say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." ( Yates v. Evatt, supra, at p. 403; see Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [the proper Chapman inquiry is whether the guilty verdict actually rendered in the trial at hand was surely unattributable to the error].) Significant in this regard is whether the evidence is "'of such compelling force as to show beyond a reasonable doubt' that the erroneous instruction 'must have made no difference in reaching the verdict obtained.'" ( People v. Harris (1994) 9 Cal.4th 407, 431, quoting Yates v. Evatt, supra, at p. 407.) Employing this standard, we can say the error was harmless.
It should first be noted that the correct murder instructions were also given. CALJIC No. 8.10, which defines murder, was given as modified:
"The defendants are accused in Count 1 of the Information of the crime of murder, a violation of Penal Code Section 187. Every person who unlawfully kills a human being with malice aforethought or was perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, or it occurred during the commission of the crime of shooting at an occupied vehicle which is a felony inherently dangerous to human life, is guilty of the crime of murder, a violation of Penal Code section 187. [¶] A killing is unlawful if it was neither justifiable nor excusable. In order to prove the crime of murder, each of the following elements must be proved: One, a human being was killed; two, the killing was unlawful; three, the killing was done with malice aforethought or was perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death or occurred during the commission of a felony inherently dangerous to human life."
In addition, CALJIC No. 8.25.1 was given, which states:
"Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally and at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree."
CALJIC No. 3.31, concurrence of act and specific intent, was given, as was CALJIC No. 3.31.5, which defines mental state. Malice aforethought was defined in CALJIC No. 8.11; deliberate and premeditated murder was defined in CALJIC No. 8.20. Also given was CALJIC No. 3.01, defining aiding and abetting and the requirement that the aider and abettor act with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing or encouraging the commission of the crime.
Closing arguments to the jury can be a relevant consideration in the prejudice equation. (See People v. Lee, supra, 43 Cal.3d at p. 677.) Here, the prosecutor, in closing, stated in part:
"With respect to first degree murder, there is express malice first degree murder, things that you look for with respect to express malice first degree murder are the number of bullets that went into this particular vehicle, the location of where the bullet holes were, the hunting down of the victims.
"The reason that the prosecution spent a significant amount of time with respect to what occurred prior to the actual shooting, is to show the intent of these three defendants, the intent to go after these victims, to hunt them down, loaded with weapons in their car, and to kill them.
"With respect to first degree express malice, premeditation means it has to be considered beforehand. There's no timetable. The law does not say they have to think about it for 30 minutes before they do it. You have to take a look at all the factors that exist prior to the shooting, prior to this killing. Deliberations weighs — when an individual weighs the pros and cons having the consequences in mind, decides to and does kill.
"Premeditation and deliberation, it's not a duration of time, but it's an extent of the reflection. Again, I know all of these things are coming in. You have to try to look at the instructions and it will tell you what premeditated, deliberated first degree murder is.
"The issue as to the intent to kill can be arrived at in a short period of time. Again, going back to the facts of this case, what led up to this killing, is extremely significant. But you can also take into consideration when determining whether an individual is guilty of first degree murder the actual shooting, the actual killing itself. Again, the reason that Steven O'Clair from Department of Justice came down and spent a significant amount of time with respect to where the bullet holes were in the car, which bullet hit which person, the opinion that he stated as to how many guns were used, all of that information is extremely significant and extremely relevant in determining whether an individual intended to kill someone, whether these defendants intended to kill someone."
The prosecutor further stated that if the jury found appellants guilty of first degree murder, it had to next find if the special circumstance were true, which "the prosecution has to prove beyond a reasonable doubt three elements." These elements were described as first, "that the murder was perpetrated by means of discharging a firearm from a motor vehicle." Second, "the perpetrator intentionally discharged the firearm at another person or persons outside the vehicle." And third, "the perpetrator at the time he discharged the firearm intended to inflict death."
Later in the same argument, the prosecutor reiterated that she was relying on two theories with respect to first degree murder, and three with respect to second degree murder. The prosecutor described the first degree murder theories as follows:
"[T]he first theory is that the defendants intended to kill the victims. That's first degree murder. If the killing was premeditated and deliberated, express malice. [¶]
"Drive by murder is the second theory the prosecution presents to you for first degree murder. In essence, what that instruction says is murder perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death. That's murder in the first degree."
The only time the prosecutor stated a killing could be "intentional, unintentional, or accidental," was within the context of explaining second degree felony murder. The jury was instructed with CALJIC Nos. 8.32 and 8.34 on the theory of second degree felony murder.
Another consideration in the prejudice equation is the state of the evidence. (See People v. Lee, supra, 43 Cal.3d at p. 677; People v. Maurer (1995) 32 Cal.App.4th 1121, 1130-1131.) Under the theory that appellants discharged a firearm from a motor vehicle intentionally at another person outside the vehicle with the intent to inflict death, it was necessary to find an intent to unlawfully kill. "Malice is express when there is manifested an intention unlawfully to kill a human being." (CALJIC No. 8.11.) Express malice requires three things: (1) an intentional, (2) unlawful (3) killing of a human being. ( People v. Saille (1991) 54 Cal.3d 1103, 1114 ["express malice and an intent unlawfully to kill are one and the same"].)
The evidence of appellants' intent to kill was quite strong. Chavez was in the car which first made contact with Joseph's car earlier in the evening. Big Alex, who was also in the car, testified that Chavez was not happy because of their contact with Joseph's car.
Almost four hours later, Prado, Guzman and Chavez followed Joseph, this time onto the highway. Big Alex, in a third car, followed appellants' car at their request. Big Alex witnessed "flashes" coming from appellants' car.
When Chavez spoke to Officer Hudson after his arrest, he admitted driving the car and that there were two guns in the car. He also admitted appellants went out to look for Joseph's car. Daniel T., who was in custody with Guzman, testified that Guzman told him he had shot someone in a drive-by shooting and that the intended victim was "some guy." Barry M., who was also in custody, told an investigator that Guzman stated he was the shooter. He also said that Chavez did not know there were guns in the car but that they had gone to fight "some other guys."
At trial, Chavez admitted he was willing to fight Joseph and that both Guzman and Prado had guns. He was equivocal as to whether he had discussed the first encounter with Joseph's car while at Prado's house. He acknowledged telling the police that he, Prado and Guzman left the house to look for Joseph's car.
On the evidence before the jury in this case, we do not have a reasonable doubt whether appellants had a specific intent to kill when the evidence shows they armed themselves, specifically set out to find and follow Joseph's car onto the highway, and then repeatedly fired into Joseph's vehicle.
Given the number of times the court told the jury a conviction of murder required proof of a specific intent to kill, and the consistent argument of counsel directed at the requirement of intent to kill, along with instructions that specific intent to kill while firing intentionally at a person outside the vehicle had to be proven by the prosecution, we conclude beyond a reasonable doubt that the jury believed proof of intent to kill was required to find appellants guilty of murder in the first degree. The instructional error was therefore harmless beyond a reasonable doubt. (See People v. Visciotti (1992) 2 Cal.4th 1, 58-59 [misleading instructions relating to intent to kill as to charge of attempted murder harmless beyond a reasonable doubt].)
2. Prado and Guzman Contend the Trial Court Erred in Failing to Instruct That Intent to Aid the Perpetrator of the Homicide Must Have Arisen Before or During the Perpetrator's Commission of the Offense
See footnote, ante, page 1.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Prado, Guzman and Chavez Contend the Trial Court Erred When It Failed to Instruct That Each Appellant Must Have Intended to Kill For the Special Circumstance to Be Found True
See footnote, ante, page 1.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Prado, Guzman and Chavez Contend Section 190.2, Subdivision (a)(21), Establishing a "Drive-By" Special Circumstance, Is Unconstitutionally Over Inclusive
See footnote, ante, page 1.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Prado, Guzman and Chavez Contend That Because the Degree of Moral Culpability Associated With Premeditated and Deliberate Murder Is Different From the Degree of Moral Culpability Associated With a Killing Perpetrated By Shooting From a Motor Vehicle, Due Process Requires the Jury Agree Unanimously On One Theory
See footnote, ante, page 1.
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6. Chavez Contends the Trial Court Erred When It Failed to Instruct That He Must Have Personally Premeditated and Deliberated the Attempted Murder Charges
See footnote, ante, page 1.
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7. Guzman and Prado Contend Section 654 Precludes Enhancing Their Murder Sentence Pursuant to Section 12022.5
See footnote, ante, page 1.
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8. Chavez Contends Section 654 Precludes Enhancing His Murder Sentence Pursuant to Section 12022
See footnote, ante, page 1.
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9. Chavez Contends Section 654 Precludes Consecutive Sentencing For a Violation of Section 12034, Subdivision (b)
See footnote, ante, page 1.
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10. Prado and Chavez Contend the Trial Court Imposed an Unauthorized Sentence By Imposing a Fine Pursuant to Section 1202.45
See footnote, ante, page 1.
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DISPOSITION
The judgment is affirmed in its entirety as to Prado and Guzman. As to Chavez, the finding of premeditation and deliberation on counts 2, 3, 4 and 5 is reversed and the matter is remanded for resentencing. Chavez's four-month section 12022, subdivision (a)(1) enhancement and eight-month sentence imposed in count 7 are ordered stayed pursuant to section 654. The $10,000 section 1202.45 fine imposed on Chavez was unauthorized and is ordered stricken. In all other respects, the judgment as to Chavez is affirmed.
We Concur:
ARDAIZ, P.J.
WISEMAN, J.