Opinion
E051722 Super.Ct.No. RIF1234419
01-20-2012
THE PEOPLE, Plaintiff and Respondent, v. ANDRES MUNOZ, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Gary W. Schons, Assistant Attorney General, and Gil Gonzales and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Gary W. Schons, Assistant Attorney General, and Gil Gonzales and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Andres Munoz appeals his conviction of first degree murder (Pen. Code, § 187, subd. (a)) with associated enhancements (§§ 186.22, subd. (b), 12022.53, subds. (d) & (e)). Defendant contends (1) the evidence was insufficient to establish the gang enhancement because the evidence did not establish the primary activities element, and (2) the trial court erred in its instruction to the jury on vicarious liability under CALCRIM No. 400. We find no error, and we affirm.
All statutory references are to the Penal Code unless otherwise noted.
II. FACTS AND PROCEDURAL BACKGROUND
On January 11, 2006, at about 4:20 p.m., Derek Ochoa was shot and killed while walking outside his home. A witness had seen Ochoa cross the street in front of a silver Camry carrying three people. Ochoa looked unsure and upset when he made eye contact with the driver, who was identified at trial as defendant. The Camry passed Ochoa, then made a U-turn, pulled back alongside him, and stopped. Shots were fired from inside the vehicle before a man—either the driver or a passenger—got out of the driver's side of the car, fired multiple shots at Ochoa, and then climbed back into the Camry. Someone inside the car yelled, "This is Delhi," as the car sped off. Paramedics rushed Ochoa to a hospital, where he died.
Detective Corporal Ronald Castillo of the Santa Ana Police Department appeared as the People's gang expert. At the time of trial, Detective Castillo had been a police officer for nearly 30 years. He had spent the past 14 years as a supervising corporal in the Santa Ana Police Department gang unit, where he supervised other detectives in gang cases, investigated cases himself, trained officers in gang identification, and advised the district attorney's office on gang charges. He investigated over 1,500 gang cases, spoke to over 5,000 gang members, taught gang classes to law enforcement officials, attended numerous conferences on gang training, and continuously spoke with other law enforcement officials about gangs. According to Detective Castillo, "Delhi" is a Hispanic street gang that controls the southern part of Santa Ana. One of the oldest gangs in the area, it had over 40 members when Ochoa was murdered. Detective Castillo testified that Delhi's primary activities include assaults, murders, and narcotic violations, and that Delhi fits the statutory definition of a criminal street gang.
While searching defendant's house, police found gang paraphernalia relating to both Delhi and the Mexican Mafia (a prison gang associated with Delhi). Defendant told police that everything belonged to his brother-in-law. Although defendant claimed not to know anything about Delhi, defendant had told schoolmates before Ochoa's murder that he was trying to get into Delhi.
After defendant was arrested, his name appeared in a gang "roll-call"— an inmate-created roster of gang associations—under Delhi. According to Detective Castillo, defendant could not have joined Delhi after entering jail and would not have falsely claimed membership. Detective Castillo also testified that defendant's "OC" tattoo suggested gang membership, and defendant's ace of spades tattoo specifically indicated membership in Delhi.
Defendant lived some distance from Ochoa's house, but defendant's cousin, Adrian Reyes, lived nearby. Defendant occasionally picked up Reyes so the two could spend time at defendant's house. While defendant could not remember if he had picked up Reyes the afternoon of Ochoa's murder, he told police that aside from retrieving his cousin, he had no reason to be in Ochoa's neighborhood.
In a separate trial, Reyes was convicted of first degree murder (§ 187, subd. (a)) with enhancements under sections 186.22, subdivision (b), and 12022.53, subdivisions (d) and (e). (People v. Reyes (Aug. 4, 2010, E057521) [nonpub. opn.].)
Reyes belonged to Delhi. The day before Ochoa's murder, Reyes was jumped by members of another gang. According to Detective Castillo, gangs must retaliate if one of their members is insulted or "disrespected," or they risk losing face with other gangs. Without retaliation, the disrespected gang member may also lose face within his gang. Gangs also expect their members to assault rival gang members on sight, even without provocation. The afternoon of the shooting, Reyes was seen in the backseat of a silver Camry carrying two others driving in the vicinity of Ochoa's house. Although Ochoa was not a member of a gang, he had joked on at least one occasion that he was "an Alley Boy." The Alley Boys was one of Delhi's rival gangs.
The jury found defendant guilty of first degree murder (§ 187, subd. (a)) and found true allegations that the crime was gang related (§ 186.22, subd. (b)) and had involved a firearm (§ 12022.53, subds. (d) & (e)). The jury found not true the allegation that defendant had personally discharged the firearm (§ 12022.53, subd. (d)). The trial court sentenced defendant to 50 years to life.
III. DISCUSSION
A. Sufficiency of Evidence of the Primary Activities Element
The jury found that defendant committed the murder to benefit Delhi, a criminal street gang. Defendant contends the People's evidence of Delhi's primary activities was insufficient, and thus, the jury's finding that Delhi is a criminal street gang as defined by section 186.22, subd. (f) is unsustainable.
1. Standard of Review: Substantial Evidence
"This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]. . . . [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.) "Evidence, to be 'substantial' must be 'of ponderable legal significance . . . reasonable in nature, credible, and of solid value.' [Citations.]" (People v. Johnson (1980) 26 Cal.3d 557, 576.) The testimony of a single witness may be substantial evidence. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577; Evid. Code § 411.) Only the trier of fact evaluates witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
2. Analysis
To establish a gang enhancement, the People must prove that defendant actively participated in a criminal street gang. (§ 186.22, subd. (b)(1).) "Criminal street gang" means "any ongoing organization . . . having as one of its primary activities the commission of one or more of [enumerated] criminal acts" that has a common name and whose members engage in a pattern of criminal gang activity. (§ 186.22, subd. (f).)
The primary activities element of a criminal street gang is a proper subject for expert opinion. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1005.) Although defendant insists that a gang expert's opinion alone is insufficient evidence, "[t]he testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran); see also People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)
In In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), a gang expert's entire testimony as to the primary activities element was as follows: "'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic[s] violations.'" (Id. at p. 611.) No evidence was "elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained his information," and "[h]e did not directly testify that criminal activities constituted [the gang's] primary activities." (Id. at 611-612.) On appeal, the court held that the evidence of the primary activities element was insufficient. (Id. at p. 614.)
Although defendant relies on Alexander L., we find that case readily distinguishable. Here, in contrast to the evidence presented in Alexander L., Detective Castillo specifically testified that Delhi's primary activities were among those listed in section 186.22, and that Delhi met the definition of a criminal street gang. He testified that he stayed current on gang culture in Santa Ana by speaking to gang members and their rivals, as well as to other gang detectives and probation officers, and he reviewed reports and field calls involving gang activity. He was familiar specifically with Delhi by speaking to its members, allies, and rivals, and to probation officers and parole officers who supervised its members, and he had been involved with search warrants for Delhi members and in recommending gang charges for participants and members. He testified that Delhi's primary activities include assaults, attempted murders, murders, and narcotics violations. He also testified as to the crimes of possession of a concealed firearm by one Delhi member and of murder by another Delhi member.
In Duran, a gang expert testified that the gang's "'main [primary activity] is putting fear into the community.'" (Duran, supra, 97 Cal.App.4th at p. 1465.) He explained that he meant, "'often these gang members are committing robberies, assaults with deadly weapons, narcotics sales, and they're doing it as a group.'" (Ibid.) The court held that such testimony, along with evidence of two specific crimes committed by gang members, was sufficient to support the primary activities element. (Id. at pp. 1465-1466.) This case is more like Duran than like Alexander L.
When an expert bases his opinion on conversations with gang members, personal investigations and information from colleagues, a jury can use that opinion to find that a gang has met the primary activities requirement of a criminal street gang. (People v. Gardeley (1996) 14 Cal.4th 605, 620.) Detective Castillo enumerated his credentials and experience with gangs for the record. Based on his testimony, the jury could reasonably find that Delhi was a criminal street gang.
B. CALCRIM No. 400
The trial court instructed the jury with a former version of CALCRIM No. 400, which stated in part: "A person is [equally] guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it." Defendant contends the "equally guilty" language in the instruction violated his federal constitutional rights for two reasons. First, he argues the use of that language misdescribed the prosecutor's burden in proving an aider and abettor's guilt of first degree murder by eliminating the need to prove the aider and abettor's intent, willfulness, premeditation, and deliberation. Second, he argues that aiders and abettors may be less guilty than the perpetrator, and because the jury found he did not personally shoot Ochoa, it necessarily convicted him as an aider and abettor.
The instruction was revised in the 2010 version of CALCRIM No. 400 to omit the word "equally." (Judicial Council of Cal., Criminal Jury Instructions (2011).) All further references herein to CALCRIM No. 400 will be to the former version, CALCRIM No. 400 (2009), unless otherwise indicated.
The jury found not true the allegation that defendant personally discharged a firearm (§ 12055.53, subd. (d)). Thus, the People's argument that "based upon the ultimate state of the People's uncontested evidence, it is clear that [defendant] was the direct perpetrator," is not well taken. Moreover, although two witnesses identified the Camry's driver—defendant—as the shooter, that evidence was not "uncontested." Two other witnesses testified the shooter had been the backseat passenger.
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1. Claim Forfeiture
The People assert that defendant has forfeited his claim of error by failing to object to CALCRIM No. 400 at trial. Generally, the failure to preserve a contention for appellate review means the issue is forfeited. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego) [holding that an objection to CALCRIM No. 400 was forfeited when the defendant failed to request modification or clarification at trial].) However, if the substantial rights of the defendant are affected, we may review a claim of instructional error without exception having been taken in the trial court. (§ 1259.) And, to determine whether the defendant's substantial rights are affected, we must necessarily examine the merits of defendant's claim. Thus, regardless of whether the issue was forfeited, we will address defendant's claim on the merits.
2. Standard of Review: De Novo
We review the wording of a jury instruction de novo to assess whether the instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) However, we "review[] instructions in context of the entire charge of jury instructions rather than in artificial isolation. [Citation.]" (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)
3. Analysis
Defendant contends the words "equally guilty" in CALCRIM No. 400 "misdescribe[] the prosecutor's burden" of proof. Failure to require that the prosecution prove each element of a crime beyond a reasonable doubt violates both the federal and California Constitutions (People v. Flood (1998) 18 Cal.4th 470, 479-480), and failing to instruct the jury on the intent requirement for vicarious liability is the same as failing to instruct on an element of the offense (People v. Reyes (1992) 2 Cal.App.4th 1598, 1601). Courts have criticized the former version of CALCRIM No. 400 as misleading while holding that it was nonetheless generally an accurate statement of the law. (See, e.g., Samaniego, supra, 172 Cal.App.4th at p. 1165 [finding the "equally guilty" language in CALCRIM No. 400 misleading in the "exceptional circumstances" of the case]; People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero) [finding the "equally guilty" language in CALJIC No. 3.00 misleading "even in unexceptional circumstances"].)
In Samaniego, three defendants were each convicted of two counts of first degree murder, but no evidence showed which defendant was the actual perpetrator for either murder. (Samaniego, supra, 172 Cal.App.4th at p. 1162.) On appeal, the defendants contended CALCRIM No. 400 erroneously instructed the jury that an aider and abettor was equally guilty to a direct perpetrator. (Samaniego, supra, at p. 1163.) As a result, CALCRIM No. 400 released the prosecution of its burden to prove the mental states of an aider and abettor. (Samaniego, supra, at p. 1164.) The jury was free to define "aider and abettor" as it saw fit, and once it found that the perpetrator(s) had the mens rea needed, it could convict all of the defendants without necessarily finding that each had the requisite mental state. (Ibid.) The prosecutor's theory for one of the murders was that the defendants had intended to kill a man named Green, but when they could not find him, they killed the victim. (Id. at p. 1162.) Thus the jury could have found that one or all of the defendants had a different mens rea from the perpetrator (whoever it may have been). The court nevertheless found harmless error, because the jury had also found the defendants guilty of multiple-murder special circumstances, which required an independent assessment of each defendant's intent, so the jury necessarily found the defendants each had the appropriate mentes reae for both murders. (Id. at pp. 1164-1165.) As noted, the Samaniego court held that CALCRIM No. 400 was a correct statement of law, but misleading in the case's "exceptional circumstances." (Samaniego, supra, at p. 1165.)
In this case, CALCRIM No. 400 does not describe the prosecutor's burden at all. It details how a person may be guilty of a crime—by personally committing it or by aiding and abetting the perpetrator. CALCRIM No. 401, which was also given to the jury, outlines the People's burden of proof to demonstrate an aider and abettor's guilt. CALCRIM No. 401 defines an aider and abettor as someone who "knows of the perpetrator's unlawful purpose and he . . . specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (CALCRIM No. 401.) The jury was properly instructed on the mental states required for both first and second degree murder and with CALCRIM No. 401, the jury was instructed on how to assess defendant's unique mental state. There were no missing jury instructions in this case, and thus, defendant's contention that the elements of aiding and abetting liability were not delineated properly fails.
Defendant also asserts the "equally guilty" language is an incorrect statement of law because an aider and abettor may be guilty of a lesser offense than the perpetrator. In People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), our Supreme Court held that the guilt of an aider and abettor in a homicide is determined by the acts of the perpetrator and the mental state of the aider and abettor, which "float[s] free" from the mens rea of the perpetrator. (Id. at p. 1119.) The two defendants in McCoy, who were tried together, fired on four men from a vehicle, wounding one and killing another. (Id. at p. 1115.) Both defendants, McCoy and Lakey, were convicted of first degree murder and two counts of attempted murder. (Ibid.) McCoy, whose weapon had fired the fatal bullets, testified that he thought one of the men had a gun and was about to shoot him. (Ibid.) The appellate court reversed McCoy's conviction because the jury was misinstructed on unreasonable self-defense. (Ibid.) The appellate court also reversed the convictions for Lakey, the aider and abettor, holding that California law did not allow an aider and abettor to be convicted of a higher offense than the perpetrator of a crime. (Ibid.) The California Supreme Court reversed with regard to Lakey. (Id. at p. 1123.) The court held that by allowing Lakey to profit from McCoy's theory of unreasonable self-defense when Lakey had no such justification, the appellate court had misunderstood the independent nature of an aider and abettor's mental state. (Id. at p. 1122.) The court explained that, "outside of the natural and probable consequences doctrine [which does not apply in the present case] an aider and abettor's mental state must be at least that required of the direct perpetrator." (Id. at p. 1118.) In the case of murder, the aider and abettor must be found to know and share the murderous intent of the perpetrator. (Ibid.) The court held that the trial court had properly instructed the jury on aiding and abetting liability and the malice requirement for murder; thus, the jury had necessarily found malice when it convicted Lakey. (Id. at p. 1122.)
In Nero, Nero and his sister Brown were both convicted of second degree murder-Nero as the perpetrator and Brown as an aider and abettor. (Nero, supra, 181 Cal.App.4th at pp. 507-508.) The jury instructions included the "equally guilty" language then found in CALCRIM No. 400. (Nero, supra, at p. 510.) The case was reversed because of jury misinstruction but not because the jury instructions contained the phrase "equally guilty." Though the jury instructions properly suggested that Brown's mens rea was not tied to Nero's, the jury asked if it could convict Brown of a lesser offense than Nero. (Id. at p. 518.) Instead of giving the proper answer, which is "yes," the trial court merely reread the instructions to the jury, repeating the "equally guilty" language in CALCRIM No. 400. (Nero, supra, at p. 518.) The jury next asked if an aider and abettor could "'bear less responsibility,'" or be convicted of manslaughter if the perpetrator was guilty of second degree murder, and the court merely said the aider and abettor could be found not guilty, though the evidence could have supported manslaughter. (Id. at p. 519.) The jury was obviously considering imposing a lesser offense on Brown, and there was "a reasonable possibility that the trial court's response to their questions improperly foreclosed [that possibility]." (Id. at p. 520.) The trial court also instructed the jury that the aider and abettor "can bear no greater responsibility as far as degree," which is expressly contrary to McCoy. (Nero, supra, at p. 520.) It was the trial court's erroneous responses to the jury's questions that caused the judgment to be reversed, not the jury instructions themselves. (Ibid.)
The Nero court stated that even in unexceptional circumstances CALCRIM No. 400 could be misleading, and the jury's questions in that case about how it could convict an aider and abettor suggested the instructions were "confusing and should be modified." (Nero, supra, 181 Cal.App.4th at p. 518.) As noted, CALCRIM No. 400 has since been modified to remove the word "equally" from "equally guilty." A potentially misleading instruction, however, does not necessarily pose a substantial risk of actually misleading the jury. (People v. Hughes (2002) 27 Cal.4th 287, 341.) What is important is the understanding the jury receives from the jury instructions as a whole. (Id. at p. 356.)
Under the circumstances of the present case, we discern no likelihood the instruction confused the jury. Unlike in Samaniego, the jury here was fully instructed on aiding and abetting liability. Unlike in Nero, the jury here did not ask any questions about aiding and abetting, and it did not receive any additional instructions from the trial court that would have improperly limited its decisions. Moreover, unlike in Samaniego and Nero, defendant was tried alone, and there was no evidence any other participant had a different mens rea from that of defendant. The jury was instructed that first degree murder requires an intent to kill and was further instructed under CALCRIM No. 401 that to find defendant guilty as an aider and abettor, it had to find that defendant both knew the perpetrator intended to commit the crime and intended to aid and abet the perpetrator to do so. (CALCRIM No. 401.) The instruction continued, "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (CALCRIM No. 401, second italics added.) Thus, the jury necessarily found that defendant knew Reyes intended to commit murder and specifically intended to facilitate that act. Knowing Reyes intended to kill, and specifically intending to aid in murder, defendant must have had an intent to kill.
As the court in Samaniego noted, "[i]t would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required," for first degree murder. (Samaniego, supra, 172 Cal.App.4th at 1166.) "Absent some circumstance negating malice one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice. [Citation.]" (McCoy, supra, 25 Cal.4th at p. 1123.) We therefore conclude any error in the use of the "equally guilty" language in CALCRIM No. 400 was harmless under any standard of prejudice. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
KING
J.