Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2007021403, Kevin G. DeNoce, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Walter Escamilla.
Susan Pochter Stone, under appointment by the Court of Appeal, for Defendant and Appellant Delfino Vasquez.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Walter Escamilla and Delfino Vasquez appeal the judgments entered after a jury convicted them of two counts each of aggravated mayhem (Pen. Code, § 205), assault with a deadly weapon (§ 245, subd. (a)(1)), and false imprisonment by violence (§ 236), and one count of torture (§ 206). The jury also found true allegations that appellants committed three of the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that Vasquez personally inflicted great bodily injury in committing the assaults and false imprisonments (§ 12022.7). In a bifurcated proceeding, the trial court found that Vasquez had suffered three prior strike convictions (§§ 667, subd. (a), 1192.7, subd. (c)). The court sentenced Escamilla to a total state prison term of 27 years to life, and Vasquez to a total term of 196 years to life. Appellants collectively contend (1) the evidence is insufficient to support the jury's true findings on the gang enhancement allegations; (2) their trial attorneys provided ineffective assistance of counsel; (3) the court misinstructed the jury on lesser included offenses; and (4) the prosecutor committed misconduct. Vasquez also alleges sentencing error, while Escamilla raises a claim of instructional error regarding his liability as an aider and abettor. As to Vasquez, we order the 10-year gang enhancements imposed on counts IV and V stricken. Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
Vasquez briefed the ineffective assistance of counsel claim, while Escamilla raises the claims of instructional error regarding lesser included offenses and prosecutorial misconduct. We address these claims as to both appellants because they have joined in each other's arguments to the extent they can benefit from them. (Cal. Rules of Court, rule 8.200(5).)
STATEMENT OF FACTS
On October 14, 2006, Zacarias Carranza was staying at Maria Lebron's apartment in Simi Valley. Carranza was in the living room with David Youell and several other people when appellants arrived at about 10:00 p.m. Carranza knew that Vasquez was a member of the West Side Locos gang and knew him by his gang moniker "Sleepy."
Vasquez sat down on the couch next to Youell and Escamilla stood near the front door as if he was "guarding" it. Without any provocation or warning, Vasquez punched Youell in the face, then pulled him to the floor and stepped on his head. When Youell asked Vasquez if he could go to the bathroom and clean the blood off of his face, Vasquez told him to "[g]o sit in the same place." After Youell complied, Vasquez hit him again. Vasquez eventually allowed Youell to go to the bathroom, but would not allow him to leave the apartment. Escamilla continued to block the exit.
Youell returned from the bathroom and sat back down on the couch. Vasquez pulled Youell to the floor, cut his face with a razor blade, and choked him. About 20 minutes later, appellants allowed Youell to leave the apartment along with Christina Chavez.
Chavez testified at trial and gave an account of the incident that was generally consistent with Youell and Carranza's testimony.
After Youell left, Vasquez grabbed Carranza by the neck and threatened to cut him with the razor blade "exactly the same [way]." Escamilla continued to block the door. Vasquez let go of Carranza and ordered him to clean up Youell's blood. Carranza started cleaning and everyone else assisted him. Appellants left shortly thereafter. Carranza left Lebron's apartment that night and stayed in Moorpark for about two weeks.
On November 12, 2006, Carranza was at his friend "C.J.'s" mobile home in Simi Valley when Escamilla arrived and asked him to help steal two motor scooters. The two of them agreed to meet later at Lebron's apartment. When Carranza walked into Lebron's apartment at about 10:00 p.m., appellants were already there along with several other people. Carranza went to change his clothes and use the bathroom. When he returned to the living room, Vasquez pulled out a razor blade and told him to get on his knees as Escamilla stood and guarded the door. Vasquez told Carranza that he would "slice [his] whole back" if he moved.
C.J.'s full name is Christopher Joseph. Joseph testified at trial and gave an account of the incident that was substantially similar to Carranza's.
Vasquez demanded to know where his "computer papers" were. Carranza replied that he did not know what Vasquez was talking about. Vasquez said he would teach Carranza a lesson and would "put my initials [sic] so nobody can laugh about me or say something about me." Vasquez used the razor blade to carve his initials into Carranza's back. Escamilla watched Vasquez do this as he continued to stand near the front door.
Carranza asked if he could go to the bathroom and wipe the blood off his back. Vasquez refused. Carranza stayed on his knees for about 20 minutes while Escamilla continued to guard the door. Vasquez eventually allowed Carranza to use the bathroom. When Carranza returned, he asked if he could leave. Vasquez replied, "You come with us. The night just started for you."
Appellants stood on each side of Carranza and walked him to C.J.'s mobile home. Vasquez continued to refuse Carranza's requests to leave. When they arrived at the mobile home, Vasquez sent Carranza back to Lebron's apartment to retrieve Vasquez's cigarettes. Carranza complied because he was afraid of what would happen to him if he did not. When Carranza returned, Vasquez was holding a drill and told him to get a drill bit from the tool box. After Carranza complied, Escamilla sat down next to him. Vasquez grabbed Carranza's hand, put the drill bit on it, and demanded to know who had taken his computer files. When Carranza replied that he had not done so, Vasquez started drilling Carranza's hand. He repeatedly stopped to ask the same question, and Carranza always gave the same answer. By the time Vasquez was finished, he had drilled a hole halfway through Carranza's hand.
Appellants left C.J.'s mobile home with Carranza and walked him to a nearby gas station. Vasquez told Carranza to steal beer from the gas station store. Carranza did not ask the store clerk for help because he was afraid. When Carranza tried to hand the beer to appellants, they said it was for him to drink. Vasquez told Carranza that he had to drink it "[b]ecause I'm going to cut a piece of your tongue and then I'm going to cut your joints." After Carranza drank two of the beers, he told them to go ahead and cut his tongue. Appellants laughed and continued walking. After awhile, appellants allowed Carranza to leave. Appellants were arrested after Carranza reported their crimes to the police.
In January 2007, Carranza was at a liquor store in Simi Valley when a man known as "Luna" approached him. Luna identified himself as a member of the West Side Locos and said that people from Glendale and Los Angeles would "do something" to Carranza's family if he testified against appellants. Two months later, a homeless man Carranza knew only as "Tony" told him he had heard that "people from Glendale [are] going to come after you and David, so be careful." Carranza's brother received a letter "asking" that Carranza not testify.
Simi Valley Police Officer Travis Coffey, a gang expert, testified that appellants were both members of the West Side Locos gang. Members of the gang who live in Glendale are known as the Glendale Westside Locos. Officer Coffey had investigated cases in which members of the Glendale group had been suspected of committing crimes in Simi Valley. Youell and Carranza were not members of the gang, nor were eyewitnesses Chavez and Joseph. The officer opined that appellants were members of the gang based on their tattoos, their prior admissions, their presence in a park known to be frequented by members of the gang, and their known associations with fellow gang members. Officer Coffey had spoken to Escamilla in English on about three different occasions, and noted that Escamilla usually appeared to have difficulty with the language only "when things didn't go his way and he didn't like what I was saying."
When presented with a hypothetical question that included the facts of the incidents involving Youell and Carranza, Officer Coffey opined that the crimes against them had been committed for the benefit of appellants' gang. The officer explained: "[Y]ou have gang members, especially multiple gang members, working together or in concert acting out some sort of violence... in front of an audience.... [G]ang members get their power or perceived power through their reputation and they gain that through instilling fear and intimidating people. [¶] By... cutting up [Youell's] face, they are probably doing about the most assault [sic] they can do before taking the next step of killing somebody." The officer continued: "[T]he reputation of the gang, since these are known gang members, would grow because look what they can do and nobody is going to stop them. It would definitely benefit West Side Locos; and, specifically, the person who did it, who perpetrated the crime, would get a great amount of respect or reputation from other gang members or anybody watching it." As to Escamilla, the officer stated, "if there is another gang member standing by while his homie or friend is conducting the assault, although he doesn't have an actual hand in doing it, he also gains reputation and respect because... he is helping out by kind of guarding the door or by just acting as his back or to help him out in case he needs help.... [¶] He is also a witness for what happened. He can tell the other gang members, hey, I saw what happened. I saw what this guy can do."
In opining that the crimes against Carranza were also committed for the benefit of appellants' gang, Officer Coffey explained: "With the two gang members using Carranza kind of as their puppet doing with him as they will, carving into his back, making him move around, drilling into his hand, obviously instilling fear and intimidation through a physical assault, their reputation is going on and on. If they can do this and someone is not fighting back or trying to get away, there must be a huge threat over his head of what he may perceive [regarding] what can happen next if I try to do something." The officer continued: "[T]his is something I have never even heard of happening in the history of Simi PD, let alone the gang life of Simi Valley PD. [¶] So if they have done something that's never been touched before around here, their reputation is going to be through the roof... and that slides around all over the gang life. Look at [W]est [S]ide. They have done the worst torture that we have ever heard of. So their reputation would grow immensely after an incident like that." The threat conveyed to Carranza by another West Side Locos member provided further support for the conclusion that the crimes against Carranza were committed for the benefit of the gang.
DISCUSSION
I.
Sufficiency of the Evidence
Appellants contend the evidence is insufficient to support the jury's true findings on the allegations that they tortured, assaulted, and committed aggravated mayhem against victim Carranza for the benefit of a criminal street gang, as contemplated by section 186.22, subdivision (b)(1). We conclude otherwise.
Section 186.22, subdivision (b), increases punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members...." In assessing the sufficiency of evidence to support gang enhancement findings, we review the entire record in the light most favorable to the judgment, to determine whether reasonable and credible evidence exists to support the decision of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1180; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) We do not reassess the credibility of witnesses or reweigh the evidence. (Olguin, at p. 1382.)
Substantial evidence supports the jury's findings that appellants' crimes against Carranza were committed for the benefit of the Westside Locos gang. Officer Coffey testified that assaults with deadly weapons and robberies were among the gang's primary activities. The officer described the gang's main activity as "instill[ing] fear and intimidation in society, " and opined that appellants intended to boost their gang's reputation and intimidate victims of future crimes by torturing, assaulting, and committing aggravated mayhem against Carranza. The facts of appellants' known gang association and the manner in which the underlying crimes against Carranza were committed are sufficient to support the officer's conclusion. The jury also heard evidence that another member of the gang told Carranza that his family would be harmed if he testified. This is precisely the type of evidence upon which a jury can make true findings on gang enhancement allegations. (See, e.g., People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [absent evidence that gang members who committed crimes together were merely "on a frolic and detour unrelated to the gang... the jury could reasonably infer the requisite [gang] association from the very fact that defendant committed the charged crimes in association with fellow gang members"]; People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [evidence supported finding that murder was committed for gang's benefit "because violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, 'fearful to come forward, assist law enforcement, testify in court, or even report crimes that they're victims of for fear that they may be the gang's next victim...'"].) Appellants' reliance on evidence from which the jury could have inferred that they were "pursuing a personal vendetta to retrieve property" is merely an attempt to cast the evidence in the light most favorable to their position. The rules of review compel us to take the opposite approach. (People v. Young, supra, 34 Cal.4th at p. 1180.)
Appellants also rely on two nonbinding federal cases, Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, for the proposition that a true finding on a gang enhancement allegation under subdivision (b)(1) of section 186.22 must be supported by evidence that the defendant intended to promote other criminal conduct by the gang that is independent of the charged crimes. We have previously rejected the reasoning of both of these cases. (People v. Vazquez, supra, 178 Cal.App.4th at pp. 353-354.) In doing so, we followed other California courts of appeal that have addressed the issue. (See, e.g., People v. Romero (2006) 140 Cal.App.4th 15, 19-20; People v. Hill (2006) 142 Cal.App.4th 770, 773-774.) Since the completion of briefing and argument in this case, the California Supreme Court expressly agreed with Vazquez, Romero, and Hill, and held that "the scienter requirement in section 186.22 (b)(1)-i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members'-is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (People v. Albillar (2010) 51 Cal.4th 47.) We are bound by this conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The other cases appellants cite in favor of their insufficient evidence claim are plainly distinguishable. (See, e.g., People v. Ramon (2009) 175 Cal.App.4th 843, 853 [insufficient evidence to support gang enhancement where expert did not testify that the defendant's charged crimes were among the gang's primary activities]; People v. Ochoa (2009) 179 Cal.App.4th 650, 662 [same]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [no evidence that the minor committed the charged crime in conjunction with a fellow gang member].) The evidence presented at trial supports the findings that the crimes appellants committed against Carranza were among their gang's primary activities, and that appellants committed those crimes for the benefit of their gang. Appellants' claim to the contrary accordingly fails.
II.
Ineffective Assistance of Counsel
In a supplemental brief, appellants allege that their trial attorneys provided constitutionally ineffective assistance by failing to object to the prosecutor's line of questioning and Officer Coffey's responses thereto regarding whether appellants personally acted for the benefit of a criminal street gang in committing the charged crimes. Appellants' claim is premised on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), which held that gang expert opinions on the subject must refer only to hypothetical individuals and not the actual defendants who are on trial. (Id. at pp. 657-659.) The Killebrew court's conclusion was premised on the proposition that expert witnesses generally may not testify on ultimate issues of fact that are reserved for the jury. (Ibid.) At least one other court has concluded that expert opinions as to the defendant's intent in this regard are admissible. (See People v. Williams (2009) 170 Cal.App.4th 587, 618-621.) The issue is currently under review in the California Supreme Court. (People v. Xue Vang (2010) 185 Cal.App.4th 309, review granted Sept. 15, 2010, No. S184212.)
We need not weigh in on this controversy because appellants do not establish ineffective assistance. To establish such a claim, they would have to demonstrate both deficient performance and prejudice, i.e., a reasonable probability that the result of the proceeding would have been different if counsel had objected. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Appellants fail to make either showing. Even if appellants could establish that Killebrew was correctly decided, Officer Coffey made it clear that his opinion regarding whether appellants acted for the benefit of a gang was "based on the hypothetical" he had been given. Although we do not sanction the prosecutor's use of appellants' names when she asked the question, the fact that she did so does not undermine the expert's clarification that his opinion was based on the hypothetical. In addressing Killebrew in another case, our Supreme Court declined to decide whether the holding was correct but noted: "The opinion never specifically states whether or how the expert referred to specific persons, rather than hypothetical persons. Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hyptothetical questions regarding hypothetical persons.... [U]se of hypothetical questions is proper." (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.)
Appellants also fail to demonstrate the requisite prejudice. Our Supreme Court has suggested that expert testimony regarding whether a particular defendant committed a crime on behalf of a gang is proper. (People v. Prince (2007) 40 Cal.4th 1179, 1227.) Moreover, in light of the substantial evidence that appellants committed their crimes against Carranza for the benefit of their gang, it is not reasonably probable that the result of the proceedings would have been different if Officer Coffey had not offered his opinion to that effect. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.)
III.
Alleged Instructional Errors
A.
CALCRIM No. 3517; Section 1097
Appellants contend the court violated its sua sponte duty to instruct the jury pursuant to section 1097 that any doubt as to whether appellants were guilty of the charged offenses or lesser included offenses had to be resolved in favor of appellants. They argue that CALCRIM No. 3517, the standard instruction on lesser included offenses that was given here, is inadequate in this regard. We disagree.
Section 1097 provides that "[w]hen it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only."
As read to the jury, the first paragraph of CALCRIM No. 3517 states: "If all of you find that a defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime." After identifying the relevant charges and their lesser included offenses, the instruction continued: "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.... [¶] For any count in which a greater and lesser crime is charged, you will receive verdict forms of guilty and not guilty for the greater crime and also verdict forms of guilty and not guilty for the lesser crime. Follow these directions before you give me any completed and signed, final verdict form. Return any unused verdict forms to me, unsigned. [¶] 1. If all of you agree the People have proved beyond a reasonable doubt that the defendants are guilty of the greater crime, complete and sign the verdict form for guilty of that crime. Do not complete or sign any other verdict form for that count. [¶] 2. If all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendants are guilty of the greater crime, inform me only that you cannot reach an agreement and do not complete or sign any verdict form for that count. [¶] 3. If all of you agree that the People have not proved beyond a reasonable doubt that the defendants are guilty of the greater crime and you also agree that the People have proved beyond a reasonable doubt that they are guilty of the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for guilty of the lesser crime. [¶] 4. If all of you agree the People have not proved beyond a reasonable doubt that the defendant[s are] guilty of the greater or lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for not guilty of the lesser crime. [¶] 5. If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime, but all of you cannot agree on a verdict for the lesser crime, complete and sign the verdict form for not guilty of the greater crime and inform me only that you cannot reach an agreement about the lesser crime."
In People v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry), our Supreme Court held that "when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense." Several courts subsequently recognized that CALJIC No. 17.10, which is substantially the same as CALCRIM No. 3517, is sufficient to convey the concept stated in Dewberry. (See People v. Barajas (2004) 120 Cal.App.4th 787, 793-794; People v. Crone (1997) 54 Cal.App.4th 71, 76; People v. Gonzalez (1983) 141 Cal.App.3d 786, 793-794, disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, 330; People v. St. Germain (1982) 138 Cal.App.3d 507, 520-522; contra, People v. Reeves (1981) 123 Cal.App.3d 65, 69-70 , disapproved on other grounds in People v. Sumstine (1984) 36 Cal.3d 909, 919, fn. 6.)
CALJIC No. 17.10 states in pertinent part: "If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime."
Appellants nevertheless assert that CALCRIM No. 3517 fails to satisfy Dewberry because it "merely tells the jury to declare a deadlock if they [sic] cannot agree on guilt for the greater offense." We are not persuaded. "If a jury is convinced beyond a reasonable doubt that a defendant is guilty of either a greater or a lesser offense, this can only be because it has a reasonable doubt about elements of the greater offense and no reasonable doubt about any elements of the lesser. Under these circumstances, [CALCRIM No. 3517] instructs the jury to convict of the lesser offense." (People v. Barajas, supra, 120 Cal.App.4th at p. 793 [interpreting CALJIC No. 17.10].) To the extent appellants argue that the jury must be allowed to return a verdict on the lesser offense when it is hung on the greater offense, the law is to the contrary. "When... the jurors express their inability to agree on a greater inclusive offense, while indicating they have reached a verdict on a lesser included offense, the trial court must caution the jury at that time that it 'may not return a verdict on the lesser offense unless it has agreed... that defendant is not guilty of the greater crime charged.'" (People v. Fields (1996) 13 Cal.4th 289, 309-310.) Appellants' claim that the jury was not instructed in accordance with Dewberry accordingly fails.
B.
Escamilla's Rejected Instructions on Aiding and Abetting
Escamilla contends the court erred in refusing to instruct the jury on whether he could be found guilty of aiding and abetting Vasquez in committing torture and aggravated mayhem under the "natural and probable consequences" doctrine. We conclude the instructions were properly refused because Escamilla was not prosecuted on the theory that torture and aggravated mayhem were the natural and probable consequences of any lesser "target" crime that he specifically intended to commit.
Escamilla submitted three special instructions specifically addressing the natural and probable consequences doctrine. The first instruction stated: "When an aider and abettor is charged with the crime originally contemplated... as well as other crimes alleged to be reasonably foreseeable consequences of the original crime, the jury must employ a four-part analysis to determine aider and abettor liability. [¶] 1) The jury must first determine the crimes and degree of crimes originally contemplated and committed by the perpetrator, [¶] 2) Next, the jury must decide whether the aider and abettor knew of the perpetrator's intent... [¶] 3) Next, the jury must determine whether other crimes and degrees of other crimes charged against the aider and abettor were committed by the perpetrator, [¶] 4) Finally, the jury must determine whether those crimes, though not necessarily contemplated at the outset, were reasonably foreseeable consequences of the original criminal acts." The second instruction provided: "Criminal liability for an aider and abettor is based upon whether a reasonable person under like circumstances would recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted." The third instruction stated, "The aider and abettor may have differing degrees of guilt based on the same conduct depending on which of the perpetrator's criminal acts were reasonably foreseeable under the circumstances or not."
"'[I]n appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged." (People v. Bolden (2002) 29 Cal.4th 515, 558.) The court may properly refuse proffered instructions that are not supported by substantial evidence. (Ibid.)
Escamilla was charged with torture and aggravated mayhem on the theory that he aided and abetted Vasquez's perpetration of those crimes by preventing the victims' escape. One who aids and abets a crime is guilty to the same extent as the actual perpetrator. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) To convict a defendant as an aider and abettor of a specific intent crime, the prosecution must prove he or she (1) acted with knowledge of the perpetrator's criminal purpose; (2) acted with the specific intent to commit, encourage, or facilitate commission of the offense; and (3) by act or advice aided, promoted, encouraged or instigated the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Under the natural and probable consequences doctrine, an aider and abettor is liable not only for the crime originally aided and abetted, but also for any other crime which is committed that is a natural and probable consequence of the target crime. (Id. at pp. 260-262.) To establish liability in this regard, the prosecution must also prove (1) that a crime other than the target offense was committed; and (2) the offense ultimately committed was a natural and probable consequence of the crime the defendant aided and abetted. (Id. at p. 262.)
The court declined Escamilla's requested instructions on the natural and probable consequences doctrine after the prosecutor confirmed that she was not relying on that theory of liability. The court also noted that no evidence had been presented regarding an uncharged target offense. Escamilla offers nothing to rebut this conclusion. Because the prosecutor did not rely on the natural and probable consequences theory of aider and abettor liability and no evidence was offered in support of that theory, Escamilla's requested instructions were properly refused. (People v. Bolden, supra, 29 Cal.4th at p. 558; see also People v. Prettyman, supra, 14 Cal.4th at p. 269 [no sua sponte duty to instruct on natural and probable consequences theory of accomplice liability where prosecutor did not rely on the theory and no supporting evidence was offered].)
In asserting that the refusal of his requested instructions deprived him of a viable defense, Escamilla notes that the jury asked a question during deliberations related to the determination whether he was guilty as an aider and abettor. Nothing in that question, or the court's response thereto, supports Escamilla's claim. The jury's note stated: "We need some help on aiding & abetting. Does the defendant have to have prior knowledge that the 'specific crime' charged was going to occur[?] For instance if he knew something was going to take place, do we have to believe that he had reasonable knowledge of the 'severity' of what was going to take place? (i.e. – was it supposed to be just a punch but it turned into a slashing?" The court responded: "Advance knowledge is not a prerequisite for liability as an aider and abettor. Aiding and abetting may be committed on the spur of the moment, that is, as instantaneously as the criminal act itself. [¶] The defendant's specific intent to encourage or facilitate the criminal actions of the perpetrator must be formed prior to or during 'commission' of that offense. [¶] A person may aid and abet a criminal offense without having agreed to do so prior to the act. It is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances."
Contrary to Escamilla's suggestion, the question does not evince any misunderstanding regarding the legal theory upon which he was being prosecuted. The jury merely requested clarification as to when Escamilla's intent to aid and abet Vasquez had to be formed. Moreover, the court's response to the question was a correct statement of the law. Nothing in the question or the response indicates that the jury may have convicted Escamilla of crimes he did not specifically intend to aid and abet.
People v. Nero (2010) 181 Cal.App.4th 504 (Nero), which Escamilla discusses in his reply brief, does not compel a different conclusion. The natural and probable consequence theory of aider and abettor liability had nothing to do with the resolution of that case. In Nero, a defendant convicted of second degree murder was prosecuted on the theory that he aided the crime by handing the murder weapon to the actual perpetrator. During deliberations, the jury asked the trial court whether the defendant could receive "a higher or lesser degree of murder, manslaughter, or innocence?" (Id. at p. 511.) Without consulting counsel, the court simply reread CALCRIM No. 400, which states that all principals to a crime are equally guilty. (Id. at p. 519.) Following People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165, the Court of Appeal concluded that while CALCRIM No. 400 is "generally correct in all but the most exceptional circumstances, " it was "misleading" in the context of that case and "should have been modified." (Nero, supra, at p. 518.) The court reasoned that the instruction might also be misleading "even in unexceptional circumstances" and stated: "[W]here, as here, the jury asks the specific question whether an aider and abettor may be guilty of a lesser offense, the proper answer is 'yes, ' she can be." (Ibid.) The court deemed the error prejudicial because there was evidence from which the jury could have found the defendant guilty of harboring the intent to commit a lesser homicide-related offense than the second degree murder of which he was convicted. (Id. at pp. 519-520.)
Here, the jury's question related to whether Escamilla had to have advance knowledge of Vasquez's criminal purpose, as opposed to whether he had to share his intent to commit torture and aggravated mayhem. The instructions made clear that the answer to the latter question was yes. Unlike Nero, the jury here was also expressly instructed that it could "convict the perpetrator of one crime and find the aider and abettor guilty of a lesser included offense."
Even if Escamilla could demonstrate the error he complains of, it would not compel the reversal of his torture and aggravated mayhem convictions. " '[A] failure to instruct where there is a duty to do so can be cured if it is shown that "the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions." [Citation.]' [Citation.]" (People v. Wooten (1996) 44 Cal.App.4th 1834, 1849.) The jury was instructed to find Escamilla guilty of torture and aggravated mayhem only if the prosecutor proved beyond a reasonable doubt that he specifically intended to, and in fact did, aid and abet Vasquez in committing those crimes. In so finding, the jury effectively rejected any claim that the crimes were not merely an unforeseen consequence of some lesser target crime that Escamilla knowingly and intentionally aided and abetted.
The record belies Escamilla's claim that "the jury was instructed that [his] liability for aggravated mayhem and torture could be premised upon aiding and abetting assaults upon Youell and Carranza regardless of whether or not [he] intentionally and knowingly encouraged Vasquez to commit further and more heinous acts of violence which comprised the offenses of aggravated mayhem and torture."
Escamilla also fails to establish a reasonable probability that he would have achieved a more favorable result if the jury had been instructed as he requested. Indeed, those instructions arguably would have made it easier for the jury to convict Escamilla of committing torture and aggravated mayhem as an aider and abettor. The instructions that were actually given required the jury to find beyond a reasonable doubt that Escamilla specifically intended to assist Vasquez in committing torture and aggravated mayhem. Under the instructions requested by Escamilla, the jury could have found him guilty even if he merely intended to aid and abet assaults, so long as it was foreseeable that the assaults would escalate into torture and aggravated mayhem. The unassailed fact that Escamilla continued to block the victims' escape while Vasquez proceeded to torture and maim them plainly would have supported such a finding. This evidence is also sufficient to sustain the finding that Escamilla shared Vasquez's criminal purpose and was therefore guilty of torture and aggravated mayhem. As the People persuasively put it, "No matter how brutally Vasquez assaulted the victims, [Escamilla] continued to play the same role throughout this long and drawn out process. There could be no reasonable doubt that [Escamilla] intended to support and encourage every act Vasquez committed." In light of this overwhelming evidence of Escamilla's guilt, any error in refusing his requested instructions was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Prettyman, supra, 14 Cal.4th at p. 274 [applying Watson harmless error standard of review to claimed error in failing to instruct on the natural and probable consequences theory of accomplice liability].)
IV.
Prosecutorial Misconduct
Appellants contend the prosecutor committed misconduct during closing argument by referring to them as "parasites that feed on the underworld, " " parasites who ruled the world and ruled the underworld of Simi Valley through fear, intimidation and violence, " and "[e]vil, wicked, monsters." The People respond that the claim is forfeited as to Escamilla because his attorney did not raise a timely objection to the prosecutor's remark, and that the claim in any event lacks merit. Escamilla counters that his claim should not be deemed forfeited because he joined in Vasquez's objection to the prosecutor's use of the term "monster" during a recess that took place a few minutes after the remark was made. Escamilla also asserts that a contemporaneous objection by his attorney or a request for a curative instruction would have been futile in light of the fact that Vasquez's objection was immediately overruled. We need not decide the forfeiture issue because appellant's claim of prosecutorial misconduct fails on the merits.
"Prosecutorial misconduct is reversible under the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (Ibid.) "When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) "'"It is settled that a prosecutor is given wide latitude during argument...."... "A prosecutor may 'vigorously argue his case and is not limited to "Chesterfieldian politeness"' [citation], and he may 'use appropriate epithets....'"' [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 221.) While the use of derogatory terms to describe a defendant may constitute misconduct, such remarks are proper if they "were founded on evidence in the record and f[a]ll within the permissible bounds of argument. [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 32.)
Appellants fault the prosecutor for referring to them as "parasites" and "[e]vil, wicked, monsters" during her closing argument. Given the particularly egregious and cruel nature of appellants' crimes, which the prosecutor aptly characterized as "inhumane, " "gruesome, " "sadistic, " and "evil, " the disparaging references to appellants were not improper. (See, e.g., People v. Friend, supra, 47 Cal.4th at p. 32 [prosecutor did not commit misconduct in stating that the defendant was "'living like a mole or the rat that he is'"]; People v. Zambrano (2007) 41 Cal.4th 1082, 1172, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22 [rejecting claim of misconduct based on prosecutor calling the defendant "especially evil" during penalty phase of capital murder trial, and citing other death penalty cases in which the defendant had been permissibly referred to as "monstrous, " "cold-blooded, " a "perverted murderous cancer, " a "human monster, " and a "mutation"]; People v. Pinholster (1992) 1 Cal.4th 865, 948, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459 [prosecutor's reference to the defendant as a "weasel" deemed a proper use of "colorful terms" to attack his credibility]; People v. Terry (1962) 57 Cal.2d 538, 561 [prosecutor acted within wide range of permissible argument by labeling the defendant an "animal"].)
V.
Section 654Vasquez contends the court violated section 654 by imposing consecutive sentences on the torture and aggravated mayhem counts involving victim Carranza. He alternatively contends that even if consecutive sentences on those counts were proper, the court violated section 654 by also imposing a consecutive sentence on the false imprisonment by violence count as to victim Carranza. Both claims are based on the premise that the jury may have found him guilty on all three counts based on the same act, i.e., the carving of his initials on Carranza's back. According to Vasquez, this possibility effectively compelled the court to conclude that his convictions for torturing, falsely imprisoning, and committing aggravated mayhem against Carranza reflected a finding that he committed a single "act... punishable in different ways by different provisions" as contemplated by section 654.
We conclude that the court did not violate section 654's ban on multiple punishment by imposing consecutive sentences for the torture, false imprisonment, and aggravated mayhem of Carranza. Vasquez's claim to the contrary is based on People v. Coelho (2001) 89 Cal.App.4th 861 (Coelho), which involved a provision of the Three Strikes law that compels consecutive sentences for each current offense "not committed on the same occasion, and not arising from the same set of operative facts." (§§ 667, subds. (c)(6) & (c)(7), 1170.12, subds. (a)(6) & (a)(7).) When the current offenses were not committed on the same occasion and did not arise from the same set of operative facts, the trial judge has discretion to impose consecutive or concurrent sentences. (Coelho, supra, at p. 864.) The court in Coelho concluded "that if the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms." (Id. at p. 865.)
In this regard, Coelho effectively recognizes that any ambiguity regarding the act or acts upon which the verdict on a particular count is based does not preclude punishment on that count, at least when the Three Strikes law is implicated. On the contrary, punishment is compelled; the trial court merely has discretion to impose a consecutive or concurrent term. By contrast, section 654 involves a determination whether punishment is proper at all. Moreover, the statute "is a discretionary benefit provided by the Legislature to apply in those limited situations where one's culpability is less than the statutory penalty for one's crimes." (People v. Solis (2001) 90 Cal.App.4th 1002, 1022.) Our Supreme Court has recognized that "the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment." (People v. Deloza (1998) 18 Cal.4th 585, 594.) A court's findings on a section 654 determination need only be supported by substantial evidence. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) Accordingly, the court need not make findings beyond a reasonable doubt regarding the acts upon which the jury relied in reaching its verdict.
People v. Assad (2010) 189 Cal.App.4th 187, is particularly instructive. The defendant in that case, like Vasquez, was sentenced for both torture and aggravated mayhem. The defendant argued among other things that the sentences amounted to multiple punishment under section 654 because "'[t]he prosecution... charged... aggravated mayhem, as a continuous conduct crime, alleging the same time period as that charged [for the torture count], ' it 'would constitute double punishment' '[t]o punish [defendant twice] for the same continuous course of conduct.'" (Id. at p. 200.) In rejecting the claim, the court reasoned: "The flaw in this argument is that the application of section 654 does not depend on the allegations of the charging instrument, but on what was proven at trial. Here, the People argue that '[t]he evidence offered at trial established multiple acts that satisfied the legal requirements of both torture and aggravated mayhem such as, the knife burning incident and the three separate beatings that occurred on September 9 and 10, 2007. Thus, the jury, which was given a unanimity instruction and was further instructed to "consider each count separately and return a separate verdict for each one, " had multiple incidents to choose from in reaching its guilty verdicts for both counts.' Defendant does not dispute the truth of this assertion. Thus, it follows the trial court-like the jury-reasonably could have concluded the torture and aggravated mayhem counts were not based on the same conduct or course of conduct, and therefore the trial court did not err in refusing to stay the sentence on one or the other of those counts." (Id. at p. 200.)
The jury in this case was presented with evidence that Vasquez carved his initials in Carranza's back and later drilled a hole in his hand. The prosecutor argued that the first incident amounted to aggravated mayhem and that both incidents qualified as torture. As Vasquez acknowledges, the prosecutor "described it to the trial court as a continuous course of conduct for the torture charge, including the carving of initials into Carranza's back and the drilling of his hand." Moreover, the jury was given a unanimity instruction and was also instructed to consider each count separately and return separate verdicts. Vasquez does not claim otherwise. Under the circumstances, the court could reasonably conclude that the aggravated mayhem verdict was based on the carving incident, as the prosecution argued, and that the torture conviction was based on the drilling of Carranza's hand. Accordingly, the court did not violate section 654 by sentencing Vasquez on both counts. (People v. Assad, supra, 189 Cal.App.4th at pp. 200-201.)
Although section 654 was not implicated in Coelho, we are mindful of the court's observation "that at sentencing, a trial court must accept and rely upon the same factual basis which the jury unanimously selected and relied upon to convict the defendant on a particular count." (Coelho, supra, 89 Cal.App.4th at p. 876.) For purposes of section 654, however, this merely means that the trial court is precluded from relying on factual theories of guilt that were not presented to the jury as well as those that were expressly rejected. (See People v. Siko (1988) 45 Cal.3d 820, 826; People v. Bradley (2003) 111 Cal.App.4th 765, 770.) That is not the case here.
Sentencing on the false imprisonment count involving Carranza was also proper. In imposing that sentence, the court reasoned that "we have a false imprisonment period that was prolonged and went well beyond the period of time for the direct acts of violence against the victim. The Court believes that this justifies a consecutive sentence ...." Substantial evidence supports the court's conclusion. In light of the evidence, the court could reasonably conclude that Vasquez continued to detain Carranza after the torture and aggravated mayhem in order to prevent him from reporting the crimes. Because the evidence is sufficient to sustain a finding that Vasquez falsely imprisoned Carranza pursuant to an objective that was independent of the torture and aggravated mayhem, separate punishment was not proscribed by section 654.
VI.
Sentencing on Gang Enhancements
Vasquez contends the court erred in imposing consecutive 10-year gang enhancements on counts IV and V under section 186.22, subdivision (b)(1)(C) because he was sentenced to indeterminate terms on those counts. The People concede the point. Gang enhancements for felonies punishable by life imprisonment are governed by subdivision (b)(5) of section 186.22, which provides that the defendant shall serve a minimum term of 15 years before he can be considered for parole. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) Vasquez is already subject to a minimum parole eligibility of 45 years on counts IV and V as a result of his prior strike convictions, so the gang enhancement is effectively moot. Accordingly, it will suffice to simply order the 10-year gang enhancements on counts IV and V stricken from the judgment.
DISPOSITION
As to Vasquez, the 10-year gang enhancements imposed on counts IV and V under section 186.22, subdivision (b)(1)(C) are stricken. The trial court shall prepare an amended abstract of judgment reflecting the modification and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgments against Vasquez and Escamilla are affirmed.
We concur: GILBERT, P.J., COFFEE, J.
In arguing that the court erred in refusing his special instructions on the natural and probable consequences theory of aider and abettor liability, Escamilla also faults the court for failing to give his special instruction stating that "[a]n aider and abettor shares the perpetrator's specific intent when he or she 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." The record reflects that this instruction was unnecessary because virtually identical language is included in the standard instruction (CALCRIM No. 401) that was actually given.