Opinion
E064822
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ROBERT GENTILE, JR., Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [CHANGE IN JUDGMENT] THE COURT
The petition for rehearing is denied. The disposition, at page 14 of the opinion filed on February 27, 2017, is modified as follows:
The conviction for first degree murder is reversed. The matter is remanded for the People to decide whether to accept reduction of count 1 to second degree murder, or to retry defendant for the first degree murder under theories other than natural and probable consequences.
Except for these modifications, the opinion remains unchanged. This modification changes the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1401840) OPINION APPEAL from the Superior Court of Riverside County. Graham A. Cribbs, Judge. Reversed and remanded. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Joseph Robert Gentile, was charged with first degree murder (Pen. Code, § 187, subd. (a)), in connection with the beating death of Guillermo Saavedra, by means of using a golf club, wooden chair, and a beer bottle. The prosecution's main witness was granted use immunity, but, depending on which statements the jury believed, may have actively participated in the beating using those implements. The jury convicted defendant of the murder, but found untrue an allegation that he used a deadly or dangerous weapon. Defendant was sentenced to 25 years to life, and the prosecution dismissed an allegation that he had a prior conviction for which he had served a prison term. (§ 667.5, subd. (b).) Defendant appealed.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, defendant argues for reversal claiming (1) the court erroneously instructed the jury it could convict him of first degree murder under the doctrine of natural and probable consequences; (2) the court failed to instruct the jury it could convict of second degree murder based on failure to rescue the victim; (3) the court failed to instruct on involuntary manslaughter as a lesser offense; (4) the court failed to instruct on involuntary manslaughter based on failure to perform a legal duty; (5) the jury's receipt of a verdict form for a finding as to his prior conviction allegation interfered with defendant's due process rights; (6) the cumulative effect of the errors was prejudicial; and (7) the amount imposed for the court operations and facilities assessments was incorrect. We reverse the conviction for first degree murder based on the California Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155.
BACKGROUND
Objectively Established Facts
The undisputed facts show that prior to June 21, 2014, Guillermo Saavedra lived in the back of the La Casita restaurant in Indio, acting as property caretaker and handyman. On June 23, 2014, the owner of the property and his son happened to drive past the restaurant and noticed the lights were on, which seemed unusual. They entered the restaurant when Saavedra did not respond and found Saavedra laying on the floor, dead. Outside, in the parking lot, they found Saavedra's cell phone. The police were contacted.
When they arrived at the restaurant, the police found the victim's body, along with a broken chair, a golf club, a wooden stick with blood, and a broken bottle near the body. The victim's cell phone was found in the grass just north of the building. Investigators documented three sets of bloody footprints, at least one of which was a shoeprint, and one of which appeared to have been made by a sock or bare foot. Detectives also collected surveillance videos from the Royal Plaza Inn and from the nearby laundromat. The police obtained and executed various search warrants after viewing evidence on the surveillance tapes of the nearby Royal Plaza hotel and the laundromat. After reviewing those surveillance videos, police officers visited the areas and found a sock on a bush at the property located between the hotel and the laundromat. The sock appeared to have a reddish-brown substance on it.
Also undisputed are certain movements by defendant and his estranged wife, Saundra Roberts, captured on the surveillance videos. At 1:03 a.m. on June 22, 2014, the defendant approached the night entrance of the Royal Plaza Hotel in Indio and pressed the buzzer. Defendant then went to the door of the hotel manager's apartment, seeking to rent a room. He appeared intoxicated, so the manager declined to rent him a room, although defendant and Roberts were regular tenants, renting a room from her two or three times per month.
The hotel manager also managed the coin-operated laundry located near the hotel. Surveillance video from that location showed Roberts talking with her on-again-off-again boyfriend, Stephen Gardner. Gardner had been contacted by Roberts, who asked him to bring a pair of shorts, a shirt and socks to the laundromat. Roberts sounded panicked, so Gardner thought she was in trouble. He took the clothes to the laundromat where he found Roberts with defendant, which made him angry. The defendant appeared to be wet, and his hands were red.
The victim suffered multiple fractures of his ribs, collarbone, and parts of the spinal structure, as well as lung hemorrhage. The injuries would have required significant blunt force. From the nature of the injuries, the pathologist opined that multiple blunt impact injuries caused the death. The pathologist also noted that the victim had coronary disease that may have led to heart failure, as a result of the beating. The injuries to Saavedra were probably inflicted with fists, a golf club, a beer bottle, and a chair. The pathologist described the cause of death as a heart attack caused by multiple blunt force injuries.
DNA testing of the blood on the sock and the head of the broken golf club matched the victim, Saavedra. There was also DNA that was consistent with defendant's profile as a minor contributor on the sock, as well another person's DNA, which the analyst could not identify due to the complex nature of the mixture. A cigarette butt recovered at the scene contained a mixture of Roberts' and Saavedra's DNA. A second cigarette butt had only one DNA profile, belonging to Saavedra, while a third butt had defendant's DNA on it. Swabs from the golf club head were analyzed and found to contain a mixture of two persons' DNA, but the profile belonging to Saavedra was the only one that could be identified. The swab from the golf club grip had DNA from three people.
In Court and Out of Court Statements
Roberts gave various accounts of the events. At trial, she testified that she called defendant for help moving from Stephen Gardner's residence on Friday, June 21, 2014, so defendant sent a young man with a truck to move her belongings. She was moving her belongings to the restaurant at which Saavedra, her dear friend, worked security and lived. The restaurant was her "safe house" when she was "at odds" with Gardner. Roberts wanted to introduce defendant to Saavedra because Saavedra wanted to meet defendant. Saavedra wanted to meet defendant because they both had backgrounds serving in the Marines. Later, Edward Cordero, one of defendant's house mates, dropped defendant off at the restaurant.
At the restaurant, the three people drank many beers and martinis throughout the evening. At one point, Roberts went out to purchase more alcohol, and when she returned, the defendant and Saavedra were still in conversation. At some point, the two men raised their voices at each other, but they did not fight. Eventually, Roberts felt both drunk and like a third wheel, so she left the two men and went to her homeless camp to sleep it off. When she left, there had not been any fighting.
In this version, Roberts indicated that she awoke at around 1:00 or 1:30 a.m., and went to a nearby AM/PM store to buy cigarettes; when she came out she saw defendant across the street at the Royal Plaza Inn hotel. She saw him walk through the parking lot and was curious why he had not gone home. Defendant told her he was trying to get a room at the hotel but was unsuccessful. Defendant was dressed in the same clothes he had worn earlier but his clothes appeared wet.
For this reason, Roberts contacted Gardner and asked him to bring her some clothes at the laundromat. Gardner was unaware that Roberts wanted the clothing for defendant, so he was surprised and angry to see defendant at the laundromat when he showed up with the items. Gardner brought a pair of shorts, a tie-dyed tee shirt, and a single sock. Later, Roberts went to Gardner's place but he ran her off because he was angry. She went back to her homeless camp to sleep and that was the last she saw of defendant or Gardner.
Gardner had left one sock in his van when he delivered the clothing.
Prior to trial, Roberts gave three other and different statements during interviews with police. In the first pretrial statement, Roberts testified she was living at the restaurant where Saavedra worked, although her relationship with the victim was purely platonic. She did not mention defendant sending a young man with a truck to move her to the restaurant. On Saturday, the defendant called her and wanted to meet with her and get a room with her, although she said it had been 16 months since she had been with defendant. In this version, Roberts indicated she went to Saavedra's place, spoke of the martinis she had made, and discussed how defendant and Saavedra talked about their military backgrounds. She described how she went out to buy more alcohol, and that the next morning, when she saw defendant, he told her he had gotten into a brawl.
There is actually some corroboration for this statement, because the hotel manager testified that defendant had contacted her earlier on June 21, 2014, to reserve a room for the night. However, the hotel manager indicated that defendant and Roberts were regular customers. --------
A few days after giving her first statement to police, Roberts was interviewed again; this time, the officers wanted her to focus on the events of Saturday. Roberts again told the officers defendant had called her that day, and that she spoke to him in the morning; when she met up with him, defendant was drunk, belligerent, and not himself. After ditching defendant following a trip to her storage unit, she met up with him again at the Jack-in-the-Box restaurant, where they got into an argument and went their separate ways. However, she went with defendant to the Royal Plaza Inn that Saturday before noon. Then defendant was dropped off at the La Casita restaurant in a white car. Saavedra had talked to defendant and invited him over, so defendant showed up at the restaurant at about 8:00 p.m., but Saavedra was not there. Roberts and defendant went to the store to purchase beer and got into another argument. Roberts returned to the restaurant without defendant, and Saavedra had returned. Saavedra told her they should go get the defendant if he were drunk, so Roberts went back and told defendant that Saavedra wanted to meet him.
In this second interview, Roberts repeated the information about Saavedra and defendant discussing their military service, Vietnam in particular, when she went out to purchase more alcohol. When she returned, their voices were raised, but they were not physical. Roberts left to go to her camp, and defendant stayed at the restaurant. She awoke at around 1:30 or 2:00 a.m. to go to the AM/PM market, where she saw defendant across the street at the Royal Plaza hotel. His clothes were soaking and he told her he could not find his phone, and something about getting into a fight. Specifically, Roberts reported that he had said he had been in a bad fight and that he might have killed the man, that he had hurt him pretty bad. He also said he needed clothes. Also during this second interview, Roberts stated defendant smelled like blood and that she thought she saw blood on his shoes. However, she could not describe how blood smelled and defendant was wearing sandals, according to the surveillance videos.
Roberts was interviewed a third time after the defendant's arrest. She told officers she had spoken by telephone with Charolette Sullivan, a long-time friend of defendant's and hers. In this interview, officers were again trying to clarify the events of Saturday, June 21, 2014. In this statement, Roberts told officers she had wanted to keep Saavedra's place a secret from defendant, although at trial she stated she wanted to keep it secret from Gardner.
Other Prosecution Evidence
Defendant asked his brother for a ride, but his brother declined. According to the brother's statement to police (which the brother refuted at trial), defendant told his brother he had done something bad and needed to leave. Defendant called his housemate and coworker Susan Champion to say that he was leaving and would not be returning, although she denied this at trial. On Sunday, June 22, 2014, defendant asked his housemate and coworker Edward Cordero for a ride to Imperial Beach. Cordero frequently gave rides to defendant, who did not have a car. Cordero dropped defendant off at Imperial Beach, and returned a short time later.
Defendant's longtime friend, Charolette Sullivan lived in Imperial Beach, and had invited defendant to visit over the Fourth of July weekend. However, defendant called to ask if he could come down earlier, and, when Sullivan agreed, defendant arrived that same day. Defendant appeared to be sad, and his hands appeared swollen, but he did not immediately mention being in a fight with anyone. He attributed the swelling to arthritis.
Eventually, defendant disclosed to Sullivan he had gotten into a fight with someone and had hit him, but that when the victim apologized, defendant stopped. However, afterwards, defendant stated that Roberts picked up some kind of club and started swinging at the man. Later, Roberts also called Sullivan, and more or less confirmed the defendant's version. Roberts told Sullivan that Saavedra had raped her and that defendant was upset about it. Roberts said that both defendant and Saavedra got really drunk and were talking about Marines stuff when Roberts mentioned to defendant that Saavedra had raped her in that same restaurant. Roberts indicated that she left, and when she did, the defendant and Saavedra got into a fight. Roberts indicated she went back later and bleached everything.
On June 28, 2014, police executed a search warrant of the residence of Charolette Sullivan, where they arrested defendant. In the garage where defendant was staying, there was a blue backpack and beach bag, along with a piece of paper that had writing on it. In the backpack, officers found a tie-dyed tee shirt and four Hawaiian shirts.
Following his arrest, defendant was interviewed. In the interview, defendant described how Cordero had dropped him off at the La Casita restaurant to meet Roberts, where there was a man (the victim) defendant had not previously met. Roberts had told defendant she was staying at the restaurant in exchange for watching the restaurant. Roberts told defendant that the other man present had been raping her. The man admitted raping Roberts and said he was sorry. Defendant struck the man three or four times in the face, using his hands. Roberts then said that the man would never rape her again, and began hitting the victim with a club or what appeared to the defendant to be a sledgehammer. Defendant took the object away from Roberts, but she retrieved it and resumed hitting the victim. Defendant took the weapon away a second time, threw it on the ground, asked her what she was doing, and then left. Defendant denied ever striking the victim with a weapon.
Legal Proceedings
Defendant was charged with one count of premeditated murder (§ 187, subd. (a)), along with personal use of a deadly weapon (§ 12022, subd. (b)(1)), and one prison prior. (§ 667.5, subd. (b).) Following a jury trial, defendant was convicted of first degree murder, but the jury did not make a true finding as to the weapon use allegation. The prison prior was dismissed, and defendant was sentenced to an indeterminate term of 25 years to life in prison. He appealed.
DISCUSSION
Defendant raises a number of contentions on appeal. However, the People have conceded error in instructing the jury on the natural and probable consequences doctrine as it relates to aider-abettor liability for murder, and we accept that concession. Because remand for retrial is required due to that instructional error, we do not need to reach defendant's other points.
1. The Jury Was Erroneously Instructed It Could Convict Defendant of Premeditated First Degree Murder Under the Doctrine of Natural and Probable Consequences.
While the details of who did what to the victim were in conflict, the People's theory of the case was that defendant committed the murder, and that Roberts was an accomplice after the fact. However, the People acknowledged that, from the various accounts of the events presented, there was evidence from which the jury could conclude that both defendant and Roberts inflicted blows on the victim which led to his fatal heart attack, and that the death was the natural and probable consequence of the target offense of aggravated assault. During summation, the People argued that if the jury accepted defendant's statement, it would still have to conclude that defendant initiated the violence, and that he aided and abetted Roberts who beat the victim with the club.
The court instructed the jury on various theories of first degree murder: (a) that defendant directly committed the crime, and (b) that defendant aided and abetted a perpetrator in committing the murder. As for the second theory, the court instructed the jury that he could be found guilty of murder if he committed an aggravated assault on the victim, that a co-participant committed an assault with a deadly weapon, and the victim died as a natural and probable consequence of the assault with a deadly weapon.
Defendant argues that it was reversible error to instruct the jury that defendant could be convicted of first degree murder under the natural and probable consequences theory. The People concede the error requires reversal of the first degree murder conviction. We agree.
It is well settled that a trial court has the duty to instruct on all general principles of law relevant to the issues raised by the evidence, with or without a formal request by the defendant. (People v. Breverman (1998) 19 Cal.4th 142, 154.) We apply the independent or de novo standard of review in assessing whether the instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
An aider and abettor may be convicted for crimes committed by the direct perpetrator under two alternative theories: under direct aiding and abetting principles and under the so-called "natural and probable consequences doctrine." (People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118.) Under direct aiding and abetting principles, the defendant is guilty of the intended (or "target") offense if he or she acted with knowledge of the criminal purpose of the direct perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the target offense. (McCoy, supra, at p. 1118.)
Prior to 2014, an aider and abettor could also be guilty of unintended crimes under the "natural and probable consequence" doctrine: when the aider and abettor acts with knowledge of the criminal purpose of the direct perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the target offense, he or she is guilty of both the intended (target) crime and any other offense (the "nontarget offense") committed by his or her confederate that was a "natural and probable consequence" of the target crime he or she aided and abetted. (McCoy, supra, 25 Cal.4th at p. 1117; see also, People v. Flores (2016) 2 Cal.App.5th 855, 866-867.)
However, in 2014, the California Supreme Court held that an aider and abettor may be convicted of first degree premeditated murder only under direct aiding and abetting principles, not under the natural and probable consequences doctrine. (People v. Chiu, supra, 59 Cal.4th at pp. 158-159; In re Brigham (2016) 3 Cal.App.5th 318, 321-322.) Thus, where the jury has been instructed on both a legally permissible theory of first degree murder and an impermissible theory of liability under the natural and probable consequences doctrine, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. (Chiu, supra, at p. 167, citing People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129; People v. Green (1980) 27 Cal.3d 1, 69-71.)
Here, the court instructed the jury at length that it could convict defendant of first degree murder if it believed that he aided and abetted Roberts' murder of the victim. The fact the jury did not find that the defendant used a deadly or dangerous weapon in the commission of the offense supports an inference that the jury convicted him on this theory, given the pathologist's determination that it would be difficult to cause the victim's fractured clavicle and the rib below it with the fists alone.
Because it is probable that the jury convicted defendant on an unauthorized legal theory, we must reverse the conviction and remand for retrial. Because retrial is required, we do not need to reach defendant's other claims of error.
DISPOSITION
The conviction for first degree murder is reversed and remanded for retrial.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.