Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 192420. Donald E. Shaver, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.
A jury convicted appellant Jose Manuel Duarte-Rodriguez of first degree murder (Pen. Code, § 187) and found true an allegation that appellant knew that another principal in the commission of that offense was personally armed with a firearm (§ 12022, subd. (d)). In a separate proceeding, the court found true allegations that appellant had suffered two “strikes” and one prior serious felony conviction (§ 667, subd. (a)). The court imposed a prison term of 81 years to life, with the determinate portion of the term consisting of 75 years for the substantive offense, five years for the prior serious felony conviction enhancement and one year for the firearm enhancement.
All statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant’s sole contention is that the evidence was insufficient to support his conviction of murder. We will affirm.
FACTS
Manuel Arciga Orneles was killed in Brennan Park in Oakdale in June 1998. Dr. Robert Lawrence, a pathologist employed by the office of the Stanislaus County Coroner, testified that he reviewed a report of an autopsy performed June 15, 1998, on Manuel Arciga Orneles, and that the report indicated the deceased died of “[m]ultiple gunshot wounds, particularly of the head.”
On June 14, 1998 (June 14), Jose Gomez saw a man (the victim) shot and killed in a park in Oakdale. On that date, Gomez was hosting a birthday party for his three-year-old son, and at one point, the party moved to the park across the street from Gomez’s house. In the park, Gomez observed a group of four or five people, one of whom was appellant. They were “drinking,” and “[o]ne of the guys” was “arguing.” The argument was about “money or something” and had “something to do with” a bicycle. One of the men, not appellant, was “asking [the victim] for the money for the bike.”
Except as otherwise indicated, the remainder of our factual statement is taken from Gomez’s testimony.
At one point, the man arguing with the victim said “that he would be back in ten minutes and that if he saw him there, he was going to kill him.” In response, the victim “was laughing.”
Thereafter, appellant and another person left the park in a van. Less than 15 minutes later, the two persons returned in the same van. By this time, Gomez had returned to his house and was in his front yard, “cutting the cake [when he] heard some shots.” He “looked out front” and saw “the man who was shooting” walking toward the victim. The shooter “seem[ed] to have come from the passenger’s side of the van.” Gomez did not see “the first three shots,” but he “did see when [the shooter] approached the guy and fired into his head.” After the shooting, the two men left in the van.
Gomez did not recall if appellant was the man who did the shooting, but at the preliminary hearing Gomez testified appellant was not the shooter.
Cynthia Aldridge testified to the following. She attended the birthday party in the park on June 14. After the children finished hitting the piñata, the party moved back to Gomez’s house. At some point thereafter, she saw three men in the park. Two of them were arguing “over $25 ….” One of these men “took the bike because he wanted his $25”; put the bicycle in a van; and “said he was going to come back, and if he didn’t have his $25 that he was going to shoot … the SOB.” The van then drove off.
Aldridge further testified to the following. She was watching television in Gomez’s house when, approximately 10 minutes later, the van returned and Aldridge heard multiple gunshots. Aldridge looked out the window and saw the same man who had been arguing and who had left in the van “walking towards two guys sitting out there, just walking and shooting.” The man doing the shooting was “walking … as if he had came out of the van, walking towards [the victim].” Aldridge’s view was of the man’s back; she could not see his face. After the man was “done shooting,” he got into the van on the passenger’s side and the van drove off.
Miguelangel Castro testified to the following. On the afternoon of June 14, he was at a park in Oakdale “talking and drinking” with some men, including appellant, Enrique Lopez and “Manuel Ventura,” who was also known as “Arciga.” At some point, appellant and Arciga were arguing about “something to do with a debt.” Lopez “butted into the conversation,” became “furious” and told Arciga that Arciga “should get something” because he (Lopez) “was going to get something.” Castro understood Lopez’s statement as a threat. Appellant was “close by” at the time Lopez made this threat.
Castro further testified to the following. After Lopez threatened Arciga, appellant and Lopez left the park “[i]n the van.” The van later returned, at which point Lopez, with a gun in his hand, got out of the van, approached Arciga, told Castro to “stand aside” and “started to shoot ….” As Lopez approached further, Castro heard more shots. Castro did not know if appellant was in the van at this time.
Cynthia Aldridge testified that her nephew, Cesar Natali, who was approximately 12 or 13 years old on June 18, was in the park that day, “right there … behind the men that were drinking,” and when the shooting started, he grabbed Aldridge’s niece and ran. Natali testified to the following. At the time of the trial, he was 22 years old, and serving time in prison. In approximately 1998, he attended a child’s birthday party in Oakdale.
However, in response to several subsequent questions, he stated he was “blackin’ out.” He testified that when prison inmates testify “[t]hey get hurt.” Eventually, he refused to answer questions, stating “I can’t do this no more.”
Thereafter, an audio tape of a statement Natali gave to Detective Joe Carrillo of the Oakdale Police Department on January 30, 2007, was played for the jury. A transcript of that tape, made part of the record on appeal, indicates Natali told the detective the following. When Natali was approximately 13 years old, he was at a child’s birthday party at a house across the street from a park in Oakdale when he “[saw this] dude park with this van,” after which “these guys [were] arguing over some money.”
Except as otherwise indicated, the remainder of our factual statement is taken from the transcript of Natali’s statement to Detective Carrillo.
The argument was “over twenty dollars.” One of the men, “the shooter,” who was outside the van, said to another man, who was also outside the van, “‘you owe me’ in Spanish.” The driver of the van remained in the van and was “arguing out the window.”
The argument continued, until the man who claimed he was owed money “said he was gonna kill him,” i.e., the man with whom he had been arguing. He then “got back in the van,” and the van drove off.
Approximately 20 minutes later, the van returned. It “pulled up real fast.” The driver remained in the vehicle, but the other man, who previously had been outside the van arguing, got out of the van, and “said did you think [I was] playin[g] motherfucker” and “[t]hen … he shot [the man with whom he had been arguing] two [or] three times.” The shooter used a handgun; it “looked pretty big.”
After the shooting, the shooter got back in the van, and he and the driver “took off” in the van.
Oakdale Police Officer Vernon Gladney testified to the following. In the course of his investigation of the shooting at the park on June 14, he made contact with Jose Gomez. Gomez told the officer that earlier that evening “several men” who had been “drinking beer,” were arguing “about some kind of a debt,” and that “a short time later” two of these men returned in a maroon van, at which point one of the men “got out of the van and shot the victim.” Shortly thereafter, Officer Gladney found a van meeting the description provided by Gomez, parked approximately one quarter mile from the park.
Detective Carrillo testified to the following. The van was eventually taken to the police department, where it was searched. Inside the van, police found a bicycle and some insurance “paperwork addressed to Jose Duarte.” The van was registered to appellant’s sister.
The prosecution also presented testimony that appellant’s fingerprints were found in the van.
DISCUSSION
“All persons concerned in the commission of a crime … whether they directly commit the act constituting the offense, or aid and abet in its commission … are principals in any crime so committed.” (Pen. Code, § 31.) Principals to a crime are thus sometimes described as falling into one of two categories -- a “perpetrator” (sometimes called an “actual perpetrator” or a “direct perpetrator”), or an “aider and abettor.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.) As a principal, the aider and abettor “shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Appellant contends the evidence was insufficient to establish (1) he “did anything before the murder to encourage, instigate or facilitate Lopez’s action” or (2) that appellant had the mental state required to establish his guilt as an aider and abettor, and that therefore his conviction cannot stand.
There is no dispute the evidence was insufficient to establish appellant’s guilt as a perpetrator.
Aiding and Abetting
A person “aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561; accord, People v. Prettyman, supra, 14 Cal.4th at p. 259.) The California Supreme Court addressed the issue of the required mental state of an aider and abettor in People v. McCoy (2001) 25 Cal.4th 1111. In that case, the court expressly stated that it was not addressing the issue of an aider and abettor’s guilt of an unintended crime under the natural and probable consequences doctrine. (Id. at p. 1117.) Rather, it was dealing with the issue of the mental state required for guilt of an aider and abettor of the perpetrator’s intended crimes. The court stated:
“It sometimes happens that an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense). Whether the accomplice may be held responsible for that nontarget offense turns not only upon a consideration of the general principles of accomplice liability set forth in [Beeman], but also upon a consideration of the ‘natural and probable consequences’ doctrine ….” (People v. Prettyman, supra, 14 Cal.4th at pp. 260-261.) However, the prosecution did not base its case on, and the instant case does not involve, the natural and probable consequences doctrine.
“Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. [Citations.] This principle applies to aiding and abetting liability as well as direct liability. An aider and abettor must do something and have a certain mental state.
“We have described the mental state required of an aider and abettor as ‘different from the mental state necessary for conviction as the actual perpetrator.’ [Citation.] The difference, however, does not mean that the mental state of an aider and abettor is less culpable than that of the actual perpetrator. On the contrary, outside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator. ‘To prove that a defendant is an accomplice … the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.] When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator;”; this occurs when the accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Ibid.)’ [Citation.] What this means …, when [the charged offense is murder and] the charged offense and the intended offense … are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, is that the aider and abettor must know and share the murderous intent of the actual perpetrator.” (People v. McCoy, supra, 25 Cal.4th at pp. 1117-1118, fn. omitted.)
Standard of Review
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] … Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) “Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Analysis
As indicated above, appellant challenges the sufficiency of the evidence as to both the act and the mental state required for aiding and abetting. With respect to the required act, he argues that the evidence was insufficient to establish he aided and abetted in the murder of the victim because, he asserts, the evidence did not establish appellant did anything before the murder to “encourage, instigate or facilitate” the crime. There is no merit to this contention. As appellant does not seriously dispute, the jury reasonably could have concluded that appellant drove Lopez to the park, and that Lopez immediately got out of the van and shot the victim. And, the jury reasonably concluded further, the act of transporting the shooter to the scene of the shooting “aid[ed] … the commission of the crime.” (People v. Beeman, supra, 35 Cal.3d at p. 561.)
For the most part, appellant’s challenge to his conviction focuses on the mental state required to establish aider and abettor culpability. In support of his claim that the evidence was insufficient to establish that he knew of and shared the shooter’s murderous intent, he argues as follows: (1) there was no testimony appellant threatened the victim or “expressed any interest in hurting [him]”; (2) there was no evidence of “when or how Lopez obtained the gun he used,” and therefore no evidence appellant “knew Lopez was armed”; and (3) “[n]o evidence showed that appellant had any reason to credit Lopez’s threats.” Appellant bases the third of these claims, in turn, on the following claims: neither the victim nor the witnesses who heard the threat appeared to take it seriously; the “conditional” nature of the threat --“Lopez allegedly threatened to kill Arciga if Arciga didn’t come up with $20” -- indicated “Lopez wanted the $20 and not to commit murder”; and the argument was over something so “incredibly trivial” that appellant could not have “expected [it] would actually result in a murder.”
The factors cited by appellant militate in favor of a finding that appellant did not take Lopez at his word, but this does not compel reversal. As indicated above, it is of no moment that the circumstances might be reconciled with a finding contrary to that reached by the jury if substantial evidence supports the jury’s finding. (People v. Kraft, supra, 23 Cal.4th at p. 1053.) The jury here reasonably could have found as follows: Lopez threatened to kill the victim. The threat was explicit and unconditional, as in Natali’s account to Detective Carrillo, or it was conditioned only on the victim being present when Lopez returned, as Gomez testified. The threat could also have been thinly veiled but no less unconditional, as in the testimony that Lopez gave warned the victim to “get something” because he (Lopez) was going to “bring something.” Appellant heard these threats, left the park with Lopez and soon thereafter drove Lopez back to the park, where Lopez got out of the van and shot the victim. Based on the foregoing, the jury reasonably could have concluded further that notwithstanding what others might have thought about Lopez’s intentions, appellant believed Lopez intended to kill the victim, and that he transported Lopez back to the park with the intent to aid in that endeavor.
Appellant cites the case of Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 (Juan H.). In that case, following a shooting in a trailer park where Juan H. (Juan), a minor, and his brother Merandon lived, Merandon, accompanied by Juan, approached the victim and another person in the trailer park and asked “if they ‘were the ones that shot up his pad.’” (Id. at p. 1267.) Merendon then pulled a shotgun from his side or the front of his pants and shot the victim, who later died of his wounds. “During the shooting, Juan H. did not say anything, make any gestures, or otherwise encourage Merendon.” (Ibid.)
Juan suffered a juvenile court adjudication of murder, based on an aiding and abetting theory. The Court of Appeals, in a review of the district court’s denial of Juan’s petition for writ of habeas corpus, found the evidence insufficient to support the adjudication: “[T]he record reflects no direct evidence that Juan H. had any idea that Merendon planned to assault or murder Magdelano and Ramirez [the victim and his companion, respectively]. Further, the circumstantial evidence presented does no more than establish that a rational trier of fact could conclude that Juan H. knew his brother was armed and ready to confront Magdelano and Ramirez if the family and home of Juan H. were again threatened. That Juan H. stood behind his older brother after the family home had been attacked, even if he knew his brother was armed, does not permit the rational inference that he knew his brother would, without provocation, assault or murder the victims.” (Juan H., supra, 408 F.3d at p. 1278.)
Juan H. is readily distinguishable. There, unlike the instant case, there was no evidence Juan heard the perpetrator threaten to kill the victim shortly before the shooting, nor did Juan drive, or in any way assist his brother, in arriving at the scene of the shooting.
In the instant case, as demonstrated above, the jury reasonably could have concluded from the evidence that Lopez intended to, and did murder, the victim, and that appellant, with the knowledge of Lopez’s intent and for the purpose of assisting him in carrying out that intent, transported Lopez to the scene of the shooting. Therefore, substantial evidence supports appellant’s conviction.
DISPOSITION
The judgment is affirmed.