Opinion
C080912
05-23-2017
THE PEOPLE, Plaintiff and Respondent, v. YATEE HER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM042403)
Defendant Yatee Her was at a marijuana operation with several cameras in place. After he shot three people there, recordings and still photographs were shown to the jury, facilitating his convictions for one count of first degree murder, two counts of attempted murder, and related charges. (Pen. Code, §§ 187 [murder], 664/187 [two counts of attempted murder], 245, subd. (b) [two counts of assault with a semiautomatic firearm]; 29800, subd. (a)(1) [felon possessing a firearm], 186.22, subd. (b)(1) [crimes committed for the benefit of a criminal street gang], 12022.5, subd. (a) [personal use of a firearm]; 12022.7, subd. (a) [personal infliction of great bodily injury], 12022.53, subd. (d) [intentional discharge of a firearm causing death or great bodily injury].) The trial court found defendant had a prior strike and serious felony (a prior assault with a semiautomatic firearm). (§§ 667, subds. (a) & (b)-(i); 1170.12, subd. (b).) The court sentenced defendant to 125 years to life plus 34 years, and defendant timely appealed.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court misinstructed on motive, and should not have instructed on flight. We find no error and affirm the judgment.
FACTS
Because of the limited nature of defendant's claims on appeal, a short statement of the facts viewed in favor of the verdicts, agreed by the parties in their briefing, suffices.
On November 21, 2014, defendant shot three people in an Oroville home used as a marijuana facility, killing Giovanni Alvarez by a headshot as the two sat next to each other, and wounding Daniel Sierra and Santino Gonzalez. Defendant also fired the gun at Daniel Henderson but missed. Multiple security cameras captured the events as they unfolded. Defendant, a gang member, was arrested the following month.
DISCUSSION
I
Motive Instruction
Defendant, recognizing contrary published authority undermines his contention, claims that the motive instruction given was improper, because it did not tell the jury that motive is an element of the gang enhancement, and in effect relieved the People's burden to prove one component of that enhancement. He is mistaken, because his argument conflates the concepts of specific intent and motive.
The trial court instructed (CALCRIM No. 370): "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." This accurately describes the law. "Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice." (People v. Hillhouse (2002) 27 Cal.4th 469, 504; see 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Elements, § 4, p. 263.)
As for the gang enhancement, the trial court instructed in part (CALCRIM No. 1401): "To prove this allegation the People must prove that One, the defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; and Two, the defendant intended to assist, further, or promote criminal conduct by gang members." (Italics added.) The trial court also included the gang enhancement in the intent instruction (CALCRIM No. 252), within the list of charges requiring proof of a specific intent or mental state, and directed the jury to the instruction for each individual charge or enhancement for an explanation of the required intent.
Defendant contends the gang enhancement instruction incorporates a motive to benefit a criminal street gang, and therefore the giving of CALCRIM 370--with no indication it did not apply to the enhancement--misstated the law.
Defendant primarily relies on People v. Maurer (1995) 32 Cal.App.4th 1121, where the defendant was charged with misdemeanor child annoyance, which required proof the defendant was " 'motivated by an unnatural or abnormal sexual interest . . . .' " (Id. at pp. 1125-1126, italics added.) But the jury was also instructed that motive was not an element of the crimes charged. (Id. at p. 1126.) Accordingly, we held that the trial court erred by not excepting the misdemeanor child annoyance offenses from the motive instruction. (Id. at p. 1127.) The distinction between the words "motivation" and "motive" was of little practical significance and therefore the two instructions presented the jury with "conflicting terms." (Ibid.)The same problem of conflicting terms was not presented here. As stated earlier, motive and intent are not the same. (People v. Hillhouse, supra, 27 Cal.4th at p. 504.) When the motive instruction is given, it does not relieve the People of its burden of proving the defendant's intent. (See People v. Cash (2002) 28 Cal.4th 703, 739.) In Cash, which involved a robbery-murder special circumstance, Cash argued that the pattern motive instruction relieved the People of their burden to prove he possessed the required intent to rob when he killed the victim. (Id. at pp. 714, 738.) Cash rejected this claim, explaining: "The trial court instructed the jury that to find the existence of the robbery-murder special circumstance, it 'must find the murder was committed in order to carry out or to advance the commission of the crime of robbery,' and that 'the special circumstance is not present if the defendant's intent is to kill and the related felony of robbery is merely incidental to the murder.' In sum, the instructions as a whole did not use the terms 'motive' and 'intent' interchangeably, and therefore there is no reasonable likelihood the jury understood those terms to be synonymous." (Id. at p. 739.)This case is like Cash rather than Maurer. As in Cash, the jury was instructed it could not sustain the gang enhancement unless it found defendant possessed the requisite intent. Unlike in Maurer, none of the instructions here equated motive with intent.
To the contrary, the jury was given a limiting instruction (CALCRIM No. 1403) providing in part: "You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements charged or the defendant had a motive to commit the crime charged." (Italics added.) This use of the disjunctive "or" by its terms also signaled to the jury that intent and motive were two different things, although the difference was evident in the other instructions given. --------
Defendant concedes two published cases directly undermine the claim he raises. In People v. Fuentes (2009) 171 Cal.App.4th 1133, Fuentes argued that CALCRIM No. 370 conflicted with the jury instructions for a gang participation offense and the gang enhancement and special circumstance allegations, which required proof of intent to further gang activity. (Id. at p. 1139.) Fuentes rejected this view, holding "[a]n intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death." (Ibid.) Another court, too, has followed Fuentes, in a published case. (See People v. Garcia (2016) 244 Cal.App.4th 1349, 1364.) We see no reasoned basis to disagree with these decisions, as defendant invites us to do.
II
Flight Instruction
Defendant contends the trial court should not have instructed on flight, because the house where the crimes occurred was not defendant's house, and the evidence, in his view, shows he merely left that house. We find no error.
The trial court instructed (CALCRIM No. 372): "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." Such an instruction is required by statute where there is evidence that a defendant's flight tends to establish guilt. (§ 1127c.)
This instruction is permissive, in that vests the jury with the power to determine two things; (1) whether defendant actually fled, and (2) what significance, if any, such flight has as it bears on the defendant's culpability. Further, the jury was instructed (part of CALCRIM No. 200) that "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I gave a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." Thus, we do not accept the view that the jury would interpret the flight instruction as an indication either that flight occurred or that any such flight evidenced guilt, as the flight instruction itself committed those two questions to the jury.
A venerable treatise cautions that "there is a difference between the mere departure of a defendant and flight, the latter term implying a departure by a defendant after being accused of a crime or at least after knowledge on his part of the commission of the crime." (Fricke, Cal. Crim. Evidence (4th ed. 1957) Consciousness of Guilt, p. 78; see People v. Boyce (2014) 59 Cal.4th 672, 690 ["Merely being at the scene and leaving it does not necessarily reflect a consciousness of guilt"].)
Here, although the crimes did not take place at defendant's house, after shooting three people he failed to even call an ambulance for the wounded. He did not wait for the police to arrive to explain his actions. Given trial counsel's argument that he was confronted by antagonistic gang members and was not the precipitator of the violence, presumably he should have remained at the scene to seek help and to describe to the responding authorities how he shot in self-defense. (Cf. People v. Bonilla (2007) 41 Cal.4th 313, 329 ["There is no dispute Bonilla immediately left the scene. Moreover, he did so under circumstances that could have given rise to an inference of consciousness of guilt: when Harris was attacked, Bonilla, by his own admission, did not call out to him, attempt to aid him, or call for or go for assistance (acts that might have led to Bonilla's detection at the scene or otherwise connected him with the attack). The jury could attribute an innocent explanation to his conduct, but it could also infer that his departure and the circumstances thereof were consistent with and supported the prosecution's theory—that Bonilla planned and intended the attack on Harris—and were inconsistent with Bonilla's theory—that the attack was a complete surprise about which he had no prior guilty knowledge"]; People v. Jurado (2006) 38 Cal.4th 72, 126 ["Defendant's failure to [summon aid], and the secreting of the murder weapon, support an inference that in leaving the crime scene defendant acted . . . to avoid observation and arrest"].)
In this case, defendant left the scene where he had shot three people, never having contacted the police, and after showing no concern for the well-being of the victims. A rational jury could infer he left to avoiding apprehension because he was conscious of his guilt, therefore the trial court properly instructed the jury with the flight instruction.
Moreover, we see no prejudice. During argument, the prosecutor did not even mention flight or this instruction. Although there were many guns and people in the house, the recordings show defendant shot the murder victim, who was sitting next to him, suddenly and without warning in the head. The recordings also show him firing other shots; shortly thereafter, defendant's companion can be seen on the porch, firing at fleeing persons. Alvarez can be seen moving as defendant remains next to him, showing no evident concern for the man he had just shot in the head. Therefore the flight instruction, if erroneously given, was harmless. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1182-1183 ["The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it"; any error harmless ]; People v. Ornelas (1936) 17 Cal.App.2d 608, 610-611 ["appellant was positively identified as the man who struck the blow and it cannot reasonably be supposed that the verdict would have been different had the instruction not been given"]; see also People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1159 [flight instruction does not presume existence of guilt or lower the prosecution's burden of proof].)
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Robie, J.