Opinion
B224378
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE MEDRANO PRADO, Defendant and Appellant.
David D. Carico for Defendant and Appellant. Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Mary Sanchez and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA040107)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed.
David D. Carico for Defendant and Appellant.
Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Mary Sanchez and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Freddie Prado and co-defendant Johnny Villalobos were charged with the murder of Juan Valadez. At trial, witnesses testified that Prado and several of his companions attacked Anthony Sanchez during a party. Valadez tried to help Sanchez and was attacked by Prado, Villalobos and others. During the altercation, Villalobos shot and killed Valadez. The jury convicted Villalobos of first degree murder and convicted Prado of second degree murder as an aider and abettor under the natural and probable consequences doctrine. Prado was also convicted of possession of a firearm by a felon. Both defendants received gang and firearm sentencing enhancements.
On appeal, Prado argues that we must reverse his second degree murder conviction and strike his firearm sentencing enhancement because: (1) there was insubstantial evidence to support his murder conviction under the natural and probable consequences doctrine; (2) the trial court committed numerous instructional errors; (3) his sentence of 40 years to life constitutes cruel and unusual punishment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Preceding Trial
On October 13, 2007, Anthony Sanchez arrived at a party and saw his friend, Juan Valadez, and his girlfriend, Sanita Morales. Morales told Sanchez that someone had been hitting on her and Sanchez hugged Morales. Shortly thereafter, an individual charged Sanchez and started attacking him. Defendant Freddie Prado and several other individuals joined in the attack. Valadez tried to help Sanchez, but was immediately attacked by the group of assailants. During the altercation, multiple gun shots were fired and the assailants ran out of the party. Valadez sustained gunshot wounds and died from his injuries.
Approximately two months after the shooting, Johnny Villalobos, who identified himself as a member of the gang "Down As Fuck" (DAF), met with police officers and admitted that he shot Valadez. Villalobos stated that he had been providing security at the party and saw Prado, who he described as "one of [his] closest friends," in a fight. Villalobos said that when he joined the fight to help Prado, Valadez began striking him in the head. Villalobos stated that he shot Valadez because he was in fear for his life. When officers asked Villalobos why he had a gun at the party, he stated that "I'm a gang member," explaining "I don't know where my rivals are. There are gangs that hate us -gangs that hate me."
B. Trial Court Proceedings
On June 25, 2008, the Los Angeles District Attorney filed an information charging Villalobos and Prado with murder (Pen. Code, § 187, subd. (a) ), and charging Prado with possession of a firearm by a felon. (§ 12021, subd. (a)(1).) The information also included special allegations asserting that: (1) a principal had personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b),(c),(d) and (e)); and (2) the crimes had been committed for "the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members." (See § 186.22, subd. (b).)
All further statutory citations are to the Penal Code unless indicated otherwise.
1. Testimony at trial
a. The prosecution's witnesses
The prosecution called six witnesses to testify at trial: Anthony Sanchez, who was Valadez's friend and the victim of the initial attack; Xochitl Chavez, who was a friend of Sanchez's girlfriend; Jancie Ayala, who owned the property where the shooting occurred; Ana Hernandez, who was Prado's girlfriend; Los Angeles County Deputy Sherriff Elizabeth Smith, who investigated the shooting; and Los Angeles County Sherriff's Department Detective William Pickett, who testified as a gang expert.
Anthony Sanchez testified that, on the night of October 13, 2007, he attended an outdoor party near Lancaster, California. After paying an admission fee, Sanchez saw his friend, Juan Valadez, and his then-girlfriend, Sanita Morales. Morales complained to Sanchez that she had been hit on by someone at the party and Sanchez hugged her. While Sanchez had his arm around Morales, a male approached, who began cursing at Sanchez and pushing him. The assailant eventually "started throwing punches." Seconds later, three or four more individuals began punching and kicking Sanchez, who tried to fight back. Sanchez eventually fell to the ground and lost consciousness. Upon regaining consciousness, Sanchez heard gunfire and then saw Valadez laying near the entrance of the party. Sanchez had no memory about the identity of his attackers.
Xochitl Chavez testified that she attended the party with Morales, who Chavez described as a friend. Chavez stated that there was a girl at the entrance of the party who was collecting money and that a couple of males were searching other men who were entering the party. After Chavez entered, she saw several Hispanic individuals who she believed to be gang members based on their clothing and bald heads. Chavez also saw that one of the individuals - who she later identified as defendant Prado - had a tattoo of the letters "DAF" on his arm, which she recognized as a symbol for the gang "Down As Fuck."
Chavez stated that before Sanchez had arrived at the party, Prado tried to "hit on" Morales. According to Chavez, Morales looked "annoy[ed]" at Prado because she "didn't want to talk to him." When Sanchez arrived, Morales informed him that someone had been hitting on her and Sanchez got mad. Shorty thereafter, Prado approached Sanchez and they started arguing about "how those guys were bothering [Morales]." Chavez heard Prado tell Sanchez "you should know who I am . . . D-A-F" and saw him display his DAF tattoo. An individual with Prado started attacking Sanchez. Although the fight was initially "one-on-one," Prado and several other individuals that Chavez believed to be gang members quickly joined "into it and . . . were all beating [on Sanchez]."
According to Chavez, Juan Valadez tried to help Sanchez by pushing away the assailants. The group of assailants then "started beating [on Valadez]," who fell to the ground. While Valadez was on the ground, Chavez heard two or three gunshots. After the shots were fired, Chavez saw the people that she believed to be gang members run out of the party and get into an SUV. She then saw Valadez laying on the ground with gunshot wounds.
Although Chavez did not see who shot Valadez, she identified Prado as one of the individuals who was involved in the beating of both Sanchez and Valadez. Chavez also testified that, a day or two after the shooting occurred, she was interviewed by detectives and identified Prado as the individual with the DAF tattoo who had participated in the attacks on Sanchez and Valadez.
Jancie Ayala, who owned the property where the party was held, testified that she had rented her property to a couple of kids who agreed to search everyone who entered the party for weapons. At some point during the party, Ayala saw a girl "interacting with [a Hispanic male]" who looked very angry. Ayala stated that the girl "looked like she was just trying to get away from a situation she didn't want to be a part of; like being hit on maybe. . . ." After this interaction, a group of males approached the female and the male she was standing with and started arguing. Initially, a few individuals started pushing the male around, and then a whole group of six or seven males who "all seemed to know each other" joined in. The group of assailants had hair styles and clothing that, in Ayala's experience, were consistent with how gang members would appear.
Ayala stated that when Valadez came in to help Sanchez, the assailants "immediately starting attacking him too." Ayala then heard a "pop," which she believed to be a gunshot, and then heard a second "pop," and saw Valadez "drop." According to Ayala, no more than 15 seconds passed between the gunshots. Ayala was unable to determine whether Prado or Villalobos had been involved in the fights with Sanchez and Prado.
Ana Hernandez, who lived with Prado and was the mother of his child, testified that Prado was a member of DAF but had been "jumped out" of the gang shortly after their son was born in March of 2007. Hernandez stated that she had seen Prado hang out with Villalobos on several occasions. Although Hernandez alleged that she had never seen Prado with firearms, the district attorney showed her several photographs in which Prado was pictured holding firearms while displaying what Hernandez identified as gang signs. In one picture, Prado was shown with Villalobos, who was displaying a gang sign. After reviewing the pictures, Hernandez admitted that although she did not know Prado had access to firearms, it appeared that he did.
Hernandez also testified that, the day after Valadez was shot, police came to Hernandez's house and executed a search warrant. Hernandez identified numerous items that were recovered during the search, including a CD holder belonging to Prado that said "Down as Fuck" and several photographs captioned "DAF," which contained pictures of individuals showing gang signs and DAF tattoos. Hernandez also stated that police had searched her silver Honda Civic. She denied owning a shotgun that was found in the trunk of the car.
Los Angeles County Deputy Sheriff Elizabeth Smith, who investigated Valadez's shooting, testified that three bullet casings were found at the scene of the party: two .380 caliber bullet casings and a single .22 caliber bullet casing. The .380 casings, one of which was found underneath Valadez's body, appeared to have been "recently used," with "gun powder still on them." The .22 casing, in contrast, was rusted and "looked like it had been there for a while."
Deputy Smith stated that, the day after the shooting, she interviewed Jancie Ayala, who said that she had seen Prado kick Valadez during the fight. Smith also interviewed Prado, who stated that although he had not been "jumped out" of DAF, he was not currently associating with the gang. Smith also interviewed Villalobos, who admitted that he shot Valadez. Villalobos claimed that he had fired his weapon once toward Valadez's chest.
Smith further testified that Valadez had suffered gunshot wounds to the "front abdomen, . . . the back, and . . . the arm." The coroner report concluded that the shots to the back and abdomen were "rapidly fatal." Valadez also displayed blunt force trauma, head injuries, laceration to the lips and abrasions to the right side of the face that were "consistent with being assaulted by hands and feet." A ballistics report indicated that bullet fragments found in Valadez were "consistent with the bullets commonly loaded into a .380 caliber . . . handgun[]."
Los Angeles County Sherriff's Department Detective William Pickett testified as a gang expert. Pickett had over 20 years experience investigating gang-related crimes and had also participated in the investigation of Valadez's death. Pickett testified that DAF was a Hispanic criminal street gang in the Palmdale area with approximately 100 to 110 members. Pickett described DAF as a "violent street gang" whose primary activities involved crimes ranging from vandalism to murder. According to Pickett, a large percentage of the DAF cases he had investigated were "violen[t] in nature, either stabbing or shooting." In 2006, Pickett investigated a case in which two DAF members were charged with shooting a firearm at a residence, a vehicle and an occupied dwelling. Pickett also stated that, in 2006 and 2007, DAF had been involved in dozens of violent crimes and that, during his career, he had personally investigated at least a dozen DAF cases involving firearms.
Pickett testified that he had reviewed several police field investigation (FI) cards indicating that Prado and Villalobos were members of DAF. An FI card prepared in August of 2007 stated that Prado had identified himself to police as a member of DAF, and a second card indicated that, in May of 2005, Prado was pulled over in a Chevy Blazer while traveling with Villalobos. Pickett stated that, based on the FI cards and other DAF cases he had handled in the past, he believed Prado and Villalobos were members of DAF.
When asked to discuss whether "the concept of respect" played a role in gangs, Pickett explained that "respect is everything in a gang. . . . If you're looked down upon by another gang, you're being punked. [Gangs are] built on your ability to perform violence, make money, or assist in that gang in some way, form, or fashion. And that is your whole pride, which you're basing everything on, is being the biggest, baddest, and toughest. . . . It's extremely important, willing to go to war with other gangs over that disrespect or violence against another individual because of that disrespect. . . . And the more violent you are, the higher level of respect you're going to have."
Pickett also described various forms of conduct that a gang might interpret as being disrespectful, including "star[ing] another gang member in the eye" or crossing out gang graffiti. Pickett also explained that "[a]ll forms of disrespect are considered equal" and require a violent retaliation, "whether it be a fight, stabbing, or shooting."
Pickett testified that when gang members are involved in an altercation, a simple fight can frequently escalate into more violent behavior, including shootings. Pickett recalled numerous cases where an act that would seem to be a small slight in regular society had escalated to more serious violence. Pickett also stated that he had responded to several DAF incidences where a fight at a party had "escalated into a stabbing or shooting."
Pickett also explained that gang members were expected to back each other up in altercations, explaining "[w]hen one person gets involved, everybody has to. You cannot stand there while a fellow gang member is either challenged or is involved in something and not get involved. . . . When you take on one individual, you're taking on the entire gang because they're going to represent that individual and stand up for him. [¶] So something as a fight or whatever he's involved in, it's very common that the entire gang is going to stand up for that and assist in that. Because, otherwise, you lose face. You're going to be either disciplined for that, or your (sic) going to have repercussions as a gang member for not doing those things. So you have to stand up." Pickett emphasized that coming to the defense of a fellow gang member was "required" unless the gang member who began the altercation instructed otherwise. He also stated that if an altercation involved "an outsider, a person that's not from the gang . . . they're going to get involved in it. Period. [Gang members] don't ask questions . . . . Unless they're instructed otherwise, they're going to get involved [in it]."
Pickett also testified that he was aware of numerous gang altercations "where a fight occurs over a girl." According to Pickett, a gang member might feel disrespected if he tried to hit on a girl, and the girl's boyfriend tried to intervene. In such a case, Pickett stated that the situation could escalate "from an argument to a fight very quickly. And then in that particular situation, fights are not going to stay one-on-one. It's going to escalate."
Pickett stated that if a gang member got upset at a girl's boyfriend, it would be normal for other members of the gang "to jump in as soon as the fight breaks out." He also explained that gang members would deal with anyone who tried to come to the aid of the boyfriend "just as harshly as . . . the original victim" and that, in such a situation, he would not be "surprise[d] at all" if the violence escalated to a point where somebody was shot.
Pickett testified that, on the night Valadez was shot, at least five DAF members were present at the party, which included Prado, Villalobos and three other DAF members who had been involved in prior firearm incidents. Pickett also said that, during his investigation, he discovered that DAF members were providing security at the party by patting down the entrants. Pickett stated that, based on his experiences, he believed that any gang members conducting pat down searches would likely be armed.
Pickett also stated that he had conducted a search on Ana Hernandez's vehicle and recovered a shotgun, which resembled a weapon that Prado was holding in several pictures recovered from a "myspace" page. Pickett stated that, in several of these pictures, Prado was displaying DAF gang signs with other known gang members.
The prosecution offered Pickett a hypothetical summarizing the evidence in the case and asked whether, in his opinion, "the crime of murder, shooting this particular individual, was done for the benefit of the gang?" Pickett responded in the affirmative, explaining that a murder would increase the gang's "status" by showing "their willingness to use violence . . . take that crime to the full tilt." According to Pickett, a murder would also benefit the gang by putting "fear and intimidation . . . into . . . witnesses" and "assist them further down the line for recruiting because someone wants to join a gang that [is] more violent than everybody else."
Pickett also testified that, based on the hypothetical provided, he would expect that weapons could be used on the individual who entered into the fight to help the initial victim, and that he would "expect someone to be shot. . . ."
b. Testimony of Johnny Villalobos
The only witness called by the defense was Johnny Villalobos, who admitted he was a member of DAF. Villalobos stated that, on the night of the incident, he arrived at the party with a "good [alcohol] buzz on" and volunteered to "pat guys down, make sure no weapons come in." In exchange, Villalobos received a portion of the entrance fees and free alcohol.
Villalobos stated that, while he patting down people who were entering the party, he saw a fight start and ran over "to help [Prado]," who he described as his best friend. Villalobos stated that Prado looked like he was in danger. As Villalobos joined the altercation, Valadez started hitting Villalobos on the head. Villalobos said he was taking "a beating" from Valadez and felt his life was in danger. Villalobos stated that he shot Valadez once with a .380 caliber weapon in the area of the clavicle. After firing his weapon, he ran out of the party, threw the gun into a vehicle, got into a second vehicle and fled. Villalobos stated that he was not trying to kill Valadez, but was just trying to protect himself. Villalobos claimed that he had only fired his weapon once and that had not heard any other gunshots. Villalobos said he discarded his gun because he was scared and had just shot someone.
Although Villalobos alleged that he was drunk at the time of the incident and was not thinking, he admitted that he was aware he had a gun and knew how to use it. Villalobos also admitted that, when he pulled the trigger, he was about an "arm length" away from Valadez and was aware that shooting someone in the chest area might result in death.
Villalobos testified that, prior to the night of the incident, he had known Prado for eight years and that Prado had seen him carry guns in the past. However, according to Villalobos, Prado was not aware Villalobos had a weapon on the night of the shooting.
Villalobos also stated that if he saw another member of DAF get into a fight, he would not feel obligated to help him, but acknowledged that most DAF members would likely feel obligated to do so. Villalobos later stated that members of DAF were "obligated to help [each other] out" and admitted that he would probably get in a fight with anyone who "disrespected" another member of DAF. He also said that if DAF members were fighting with someone who had disrespected the gang, and an individual tried to help that person, the fight would "probably escalate to another level," and that a gang member might use a gun because "that's what happens as a gang member." When asked whether there was great potential that a gang fight involving DAF could end with somebody dead, Villalobos stated "yes, if it escalates to that level."
Villalobos also testified that DAF was involved in violent crimes and that being a gang member meant that you commit crimes. Villalobos admitted that those crimes sometimes involved assaults, stabbings and shootings and that, when he joined DAF, he knew the gang "was about crime and killing." He also said that one of the reasons he joined the gang was because he believed people would back him up if he ever got into trouble because that is what gang life is about.
2. Closing arguments, jury instructions and the verdict
a. Closing arguments
During closing argument, the district attorney informed the jury that Prado was being prosecuted "under the natural and probable consequences theory." The district attorney explained that, to convict Prado of murder under the natural and probable consequences doctrine, the prosecution was required to prove that: (1) Prado was "guilty of [an] assault"; (2) while committing an assault, "a crime of murder was committed by . . . Villalobos"; and (3) "under all the [reasonable] circumstances, . . . [Prado] would have known that the commission of murder was a natural and probable consequence of the commission of the assault . . . ." According to the prosecutor, the key question the jury had to determine in regards to defendant Prado was whether he would "believe that it's a natural and probable consequence that when he starts a fight with Juan Valadez, that Villalobos is going to shoot him." The prosecution further asserted that, based on the testimony and evidence presented at trial, it was probable that another gang member would pull out a gun and shoot someone during an altercation.
Prado's attorney admitted that Prado and Villalobos were gang members, but argued that the natural and probable consequences doctrine did not apply under the circumstances of the case. The defense asserted that the doctrine might apply if there were "some other gang members in a different gang that was there, and a dispute breaks out between those . . . gangs, . . . and somebody takes a gun, and shoots." However, the defense contended that the natural and probable consequences did not apply "in a situation . . . where there's a party that's got nothing to do with gangs; and then all of the sudden, somebody gets shot and you're going to hold any gang member who happens to be there involved in a fight. You're going to hold that person responsible for a murder? I don't think so. That's not the purpose of that theory. [¶] It's really a stretch to hold everyone responsible because of what somebody else does unless you can put a connection between the two."
b. Jury instructions and deliberations
At the conclusion of the trial, the court read the jury a series of instructions, which it later provided to the jury in written form. The instructions explained the concepts of "principals" and "aiding and abetting" as follows:
"Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime."
"A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice, aids, promotes, encourages or instigates the commission of the crime."
The court also provided an instruction on "Liability for Natural and Probable Consequences," which stated:
"One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find Defendant Prado guilty of the crime of Murder, as charged in Count 1, or of Voluntary Manslaughter, a lesser included offense thereto, under this theory, you must be satisfied beyond a reasonable doubt that: [¶] 1. Either the 'target crime' of Assault, or the 'target crime' of Assault by Means of Force likely to Produce Great Bodily Injury was committed; [¶] 2. That Defendant Prado aided and abetted that 'target crime'; [¶] 3. That a co-principal in that 'target crime' committed the crime of Murder, or the crime of Voluntary Manslaughter; and [¶] 4. The crime of Murder, or the crime of Voluntary Manslaughter, was a natural and probable consequence of the commission of the 'target crime' of Assault or the 'target crime' of Assault by Means of Force likely to Produce Great Bodily Injury. [¶] In determining whether a consequence is 'natural and probable,' you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all the circumstances surrounding the incident. A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen."
The court also provided instructions on the elements of the target crimes "assault" and "assault [with a deadly weapon or] by means of force likely to produce great bodily injury [or with a firearm]." Finally, the court instructed the jury on the elements of the charged "nontarget" crime of "murder," including both "deliberate and premeditated murder" and "unpremeditated murder of the second degree," and the lesser included offense of "voluntary manslaughter."
During its deliberations, the jury asked the trial court the following question: "If we find one defendant guilty of murder one, can we find the second defendant guilty of a lesser charge?" Before responding, the trial court informed the prosecution and the defense how it intended to respond and Prado's counsel confirmed that he was "okay with [the] response." The court then instructed the jury: "Each of the defendants in this case is being prosecuted under a different theory. With regard to defendant Villalobos, you must determine what crime, if any, he personally committed. With regard to defendant Prado, you must determine what target crime, if any, he committed; and if so, what crime, if any, was a natural and probable consequence of that target crime. [¶] Depending on what your determinations are with regard to each of those factual issues, you may arrive at verdicts which vary between the defendants. You must evaluate the evidence against each defendant separately and not allow your verdict as to one defendant to influence your verdict as to the other."
c. Verdict and sentencing
On count 1, the jury convicted Villalobos of first degree murder and Prado of second degree murder. It also found true the special allegation that a principal personally and intentionally discharged a firearm, causing great bodily injury and death. On count 2, the jury convicted Prado of possession of a firearm by a felon. The jury also found that both counts were committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b).
On count 1, Prado was sentenced to a term of 15 years to life for second degree murder, plus a consecutive term of 25 years to life for the firearm enhancement. (See § 12022.53, subd. (d), (e).) Prado was also sentenced on count 2, but the sentence was stayed. Prado filed a timely appeal.
DISCUSSION
On appeal, Prado argues that there was insufficient evidence to convict him of second degree murder under the natural and probable consequences doctrine. He further asserts that the trial court made several instructional errors. Finally, Prado alleges that the natural and probable consequences doctrine is no longer a valid theory of criminal law and that his sentence constituted cruel and unusual punishment.
A. There was Sufficient Evidence to Convict Prado of Second Degree Murder Under the Natural and Probable Consequences Doctrine
1. Standard of review
"'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]' [Citation.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. [Citation.] Reversal on this ground is unwarranted unless '"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."' [Citation.] This standard applies whether direct or circumstantial evidence is involved. [Citation.]" (People v. Canizalez (2011) 197 Cal.App.4th 832, 841 (Canizalez).)
2. Summary of the natural and probable consequences doctrine
The "'natural and probable consequences' doctrine . . . is an 'established rule' of American jurisprudence [citation]. It is based on the recognition that 'aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman).)
Under the natural and probable consequences doctrine, an "aider and abettor[] . . . is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets . . . . [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.' [Citation.] Thus, . . . a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the 'natural and probable consequence' of the target crime." (Prettyman, supra, 14 Cal.4th at p. 261.)
When "a particular aiding and abetting case triggers application of the 'natural and probable consequences' doctrine, the . . . trier of fact must find" that: (1) the defendant aided and abetted the commission of the target crime; (2) "the defendant's confederate committed an offense other than the target crime"; and (3) "the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (Prettyman, supra, 14 Cal.4th at p. 262.) In this case, Prado argues that there was insufficient evidence to establish the first element - that he aided and abetted Villalobos in an assault; and the third element - that Villalobos's shooting of Valadez was a natural and probable consequence of the assaults on Sanchez and Valadez.
3. There is substantial evidence that Prado aided and abetted Villalobos in committing assault
Although Prado does not contest that there was sufficient evidence to show that he and Villalobos each perpetrated an assault on Valadez, he argues that there was insufficient evidence to show that he aided and abetted Villalobos in committing any such assault. According to Prado, the evidence showed that he "was already involved in the fight when Villalobos intervened. . . . Thus, if anyone was aiding and abetting it was Villalobos, not . . . Prado." Prado further contends that there was no evidence that he "sa[id] or did anything that encouraged or promoted Villalobos to participate in the fight."
To prove that a defendant is an "aider and abettor," the "the prosecution must show that the defendant acted 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation]." (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy); see also Prettyman, supra, 14 Cal.4th at p. 259.) "[T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator." (McCoy, supra, 25 Cal.4th at p. 1120.)
There was substantial evidence at trial that both Prado and Villalobos were involved in the assault on Valadez. Xochitl Chavez testified that she saw Prado attacking Sanchez, and then attacking Valadez. Officer Smith testified that Jancie Ayala identified Prado as one of the individuals who had attacked Valadez. Villalobos admitted that he joined the altercation to help Prado, and then started fighting with Valadez, who he eventually shot. Based on this evidence, the jury could reasonably infer that Prado and Villalobos were each simultaneously involved in the assault on Valadez, and were therefore both "act[ing] in part as the actual perpetrator and in part as the aider and abettor of the other . . . ." (McCoy, supra, 25 Cal.4th at p. 1120.)
There was also substantial evidence that Prado engaged in conduct that encouraged or promoted Villalobos to participate in the assault on Valadez. Detective Pickett, who testified as a gang expert, stated that Prado and Villalobos were both members of DAF. Pickett also explained that, when one gang member gets involved in an altercation, other members of the gang understand that they are required to join the fight. Pickett stated that if an altercation involves "an outsider, a person that's not from the gang . . . [other gang members are] going to get involved in it." Villalobos corroborated this testimony, stating that DAF members were "obligated" to back each other up when another member of DAF got into an altercation. Finally, Chavez stated that, before the attacks on Sanchez and Valadez, Prado displayed his DAF tattoo and told Sanchez "you should know who I am . . . D-A-F."
Based on this testimony, the jury could reasonably infer that when Prado began fighting with Sanchez, and then extended the fight to include Valadez, he did so with the expectation that other gang members who were present would come to his aid, thereby encouraging Villalobos to engage in the assault on Valadez.
4. There was substantial evidence that Villalobos's shooting of Valadez was a natural and probable consequence of the initial assault
Prado also argues that there was insufficient evidence that Villalobos's act of shooting Valadez was a natural and probable consequence of the assaults perpetrated on Sanchez and Valadez.
"Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.] [¶] '[A]lthough variations in phrasing are found in decisions addressing the doctrine - "probable and natural," "natural and reasonable," and "reasonably foreseeable" - the ultimate factual question is one of foreseeability.' [Citation.] Thus, '"[a] natural and probable consequence is a foreseeable consequence". . . .' [Citation.] But 'to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough . . . ." [Citation.]' [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury. [Citations.]" (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina))
In this case, the prosecution introduced substantial evidence that Prado and Villalobos were both members of DAF and that several other DAF members attended the party where Valadez was shot. Villalobos admitted that he was a member of DAF. Detective Pickett testified that Prado was also a member of DAF, which was corroborated by the fact that he had a DAF tattoo and allegedly referred to his DAF membership prior to attacking Sanchez. The prosecution also introduced several photographs in which Prado was pictured with other DAF gang members displaying DAF gang signs. Detective Pickett also testified that, in addition to Prado and Villalobos, at least three other members of DAF were at the party.
During closing argument, Prado's counsel effectively conceded that Prado was a gang member, stating "[h]ere we have somebody who was a gang member, he is a gang member or was a gang member . . . . Fine. They're gang members. We admit [that]."
There was also substantial evidence that Prado "would have or should have known" that Villalobos or another "fellow gang member [at the party] was or might be armed." (Medina, supra, 46 Cal.4th at p. 923.) The prosecution introduced several photographs in which Prado was pictured holding firearms with other DAF members while displaying DAF gang signs. Villalobos testified that Prado had seen him with firearms on several occasions in the past. When officers asked Villalobos why he had a gun at the party, he stated "I'm a gang member." Detective Pickett testified that DAF members had been involved in numerous firearms offenses and that he had personally investigated at least a dozen DAF cases involving firearms. Pickett also stated that three other DAF gang members attending the party had all been involved in prior firearms incidents. Based on this evidence, the jury could reasonably infer that Prado knew or should have known that Villalobos or another member of DAF who attended the party would be in possession of a firearm.
The likelihood that Villalobos might be armed was also supported by the fact that he was providing security at the party. Villalobos testified that he had volunteered to "pat down guys" who were entering the party. Detective Pickett testified that a gang member providing security in such a manner was likely "to be armed, especially if he's patting . . . down . . . another individual for weapons. He's going to be armed himself. He's not going to go into that, you know, a confrontation possibly with another gang member, another individual who's armed and not be armed himself."
The prosecution also introduced substantial evidence that if a member of DAF got into an altercation with an individual who was not in the gang, other members of DAF would likely join the altercation. Detective Pickett testified that "[w]hen one [gang member] gets involved, everybody has to. You cannot stand there while a fellow gang member is either challenged or is involved in something and not get involved. . . . When you take on one individual, you're taking on the entire gang because they're going to represent that individual and stand up for him." Pickett further stated that, gang members were "required" to back each other up and that, if an altercation involved "an outsider, a person that's not from the gang[,] . . . [other gang members are] going to get involved. . . ."
Villalobos's testimony corroborated many of Pickett's statements. Villalobos explained that members of DAF were "obligated to help [each other] out" and that he would probably get in a fight with anyone who "disrespected" another member of DAF. He also said that one of the reasons he joined DAF was to ensure that if he got into trouble, other gang members would back him up because that is what gang life is about.
There was also substantial evidence that the incident that preceded the attack on Sanchez - a disagreement over a girl - might lead to an altercation involving DAF members. Detective Pickett testified that a gang member might feel disrespected if he tried to hit on a girl, and the girl's boyfriend tried to intervene. He also stated that if a gang member got upset at a girl's boyfriend, it would be normal for other members of the gang "to jump in as soon as the fight breaks out." He also explained that gang members would deal with anyone who tried to come to the aid of the boyfriend "just as harshly as . . . the original victim." In such a case, Pickett stated that the situation could escalate "from an argument to a fight very quickly."
Finally, there was substantial evidence that an altercation involving members of DAF would escalate to violence, and might result in a shooting. Pickett testified that DAF was a "violent street gang" and that a large percentage of the crimes it committed were "violen[t] in nature, either stabbing or shooting." Pickett also testified that a "simple fight" involving gang members will frequently escalate into something much more violent, including shootings. Pickett recalled numerous cases where an act that would seem to be nothing more than a small slight in regular society had escalated to more serious violence.
Pickett also stated that he had responded to several DAF incidences where a fight had broken out a party "and escalated into a stabbing or shooting." Pickett also said that "where a [gang] fight occurs over a girl," he would not be "surprise[d] at all" if the violence escalated to a shooting. When presented a hypothetical summarizing the evidence in the case, Pickett testified that he would expect that weapons could be used on the individual who entered into the fight to help the initial victim, and that he would "expect someone to be shot. . . ."
Again, Villalobos's testimony corroborated several of Pickett's statements. Villalobos stated that DAF was involved in violent crimes, which sometimes involved assaults, stabbings and shootings. He also stated that being a gang member meant that you commit crimes and that he knew DAF "was about crime and killing." He also said that if DAF members were fighting with someone who had disrespected the gang, and an individual tried to help that person, the fight would "probably escalate to another level," and that a gang member might use a gun because "that's what happens as a gang member." When asked whether there was great potential that a gang fight involving DAF could end with somebody dead, Villalobos stated "yes, if it escalates [to that level]."
In sum, there was substantial evidence of the following: (1) Prado, Villalobos and several other DAF members were present when Valadez was attacked and then shot; (2) Prado knew or should have known that Villalobos or another member of the DAF was likely to be armed; (3) Prado began an altercation by confronting Sanchez over a girl; (4) Prado knew that if a member of DAF began an altercation with an individual who was not a member of DAF, other members of the gang were likely to join in the fight; and (5) it was foreseeable that such an altercation could escalate to the point where a DAF member would shoot somebody. Based on this evidence, the jury could reasonably infer that it was foreseeable that the assault that Prado participated in, as both a direct perpetrator and as an aider and abettor, would result in the shooting of Valadez.
The facts of this case are analogous to Medina, supra, 46 Cal.4th 913, in which the California Supreme Court affirmed a murder conviction arising from a gang dispute. The evidence at trial showed that defendants Jose Medina, George Marron and Raymond Vallejo, who were all members of the Lil Watts gang, attended a party hosted by Manuel Ordenes. At around 11:00 p.m., Ordenes's friend, Ernie Barba, arrived to pick up a CD. While Barba was in the doorway, Vallejo asked him "[w]here are you from?", which, according to multiple witnesses, meant "what gang are you from?" (Id. at pp. 916-917.) Medina, Marron and Vallejo exited the house and continued to ask Barba where he was from. Barba eventually replied, "Sanfer," signifying a San Fernando Valley gang. (Id. at p. 917.) Vallejo responded, "Lil Watts," and Medina remarked, "What fool, you think you crazy?" (Id. at p. 917.) Vallejo then punched Barba, and Medina and Marron started attacking Barba. Barba fought off the assailants, got back to his car and drove off with his girlfriend. As Barba was driving away, Barba's girlfriend heard someone say "get the heat." Medina then walked into the street and fired a pistol at the moving vehicle. (Ibid.) Barba was shot in the head and died from his injuries.
Medina, Marron and Vallejo were charged with first degree murder and attempted murder. "Under the prosecution's theory at trial, Medina was guilty as the actual perpetrator, while Marron [and] Vallejo . . . were guilty as aiders and abettors" pursuant to the natural and probable consequences doctrine. (Medina, supra, 46 Cal.4th at p. 917.) At trial, a gang expert testified that the defendants viewed Barba's claim of membership in another gang to be disrespectful and started a fight to avenge themselves. The expert further stated that a gang member who asks what gang another person is in could be armed and probably would be prepared to use violence, ranging from a fistfight to homicide. The expert explained, "[i]n the gang world problems or disagreements aren't handled like you and I would handle a disagreement. . . . When gangs have a disagreement, you can almost guarantee it's going to result in some form of violence, whether that be punching and kicking or ultimately having somebody shot and killed." (Id. at p. 918.)
Ordenes, who hosted the party and was a former gang member, testified that "death is sometimes an 'option' exercised by gang members as a way to maintain respect. Ordenes further stated [that] a lot of gang members . . . occupy[] their 'turfs' with guns." (Id. at pp. 918-919.) The jury convicted all three defendants of murder and attempted murder.
The Court of Appeal confirmed Medina's conviction, but "reversed the convictions of Marron and Vallejo on the ground there was insufficient evidence that the nontarget crimes of murder and attempted murder were a reasonably foreseeable consequence of simple assault, the target offense they had aided and abetted." (Medina, supra, 46 Cal.4th at p. 919.) The appellate court "emphasized there was no evidence that the assailants used weapons or were armed during the fistfight, or that the two gangs involved were in the midst of a 'war' or had been involved in prior altercations. It further stressed that the shooting occurred after the fistfight had ended." (Id. at p. 922.)
The Supreme Court reversed, explaining that the appellate court had erred by focusing on "facts that were missing, rather than on the actual evidence presented." (Medina, supra, 46 Cal.4th at p. 921.) The court explained that, to convict a defendant for murder under the natural and probable consequences doctrine, the prosecution was not required to show "prior knowledge that a fellow gang member is armed" or that two gangs had previously been involved in a rivalry. (Ibid.)
The Supreme Court further explained that the jury could reasonably infer that the shooting was a foreseeable consequence of the initial assault based on the following evidence: (1) the defendants had initially challenged [the victim] by asking what gang he was from; (2) the gang expert testified that gang members emphasize the need for respect and use violence as a response to disrespectful behavior, (3) the gang expert testified that Lil Watts "regularly committed gun offenses" and "occupied their turf with guns" (Medina, supra, 46 Cal.4th at p. 923); (4) the expert testified that "escalating the violence with a gun was a foreseeable way for a Lil Watts gang member to exact revenge for . . . disrespect and . . . establish[] . . . turf domination" (id. at p. 923); and (5) the fact that one of the gang members said "get the heat" suggested that "at least two of the gang members knew a gun was available at the scene." (Id. at p. 925.)
As in Medina, there was substantial evidence in this case showing that: (1) Prado and other gang members attacked a third-party who engaged in conduct that was disrespectful to DAF (confronting a DAF member over a girl); (2) Prado had reason to know that another member of his gang might be armed; (3) DAF members were likely to join in any fight involving a DAF member; and (4) it was not unusual for confrontations involving DAF members to escalate into violence, including shootings.
Prado argues that Medina is distinguishable because "the gang assault [here] was unplanned and did not involve a confrontation between rival gangs." However, there was no evidence in Medina suggesting that the shooting was "planned." Rather, as in this case, the shooting occurred after a gang member became involved in an altercation with a person who was not a member of the gang. Moreover, nothing in Medina suggests that the natural and probable consequences doctrine is limited to instances in which a gang fight occurs between "rival gangs." Indeed, the court emphasized that "prior gang rivalry . . . is not necessary for a court to uphold a gang member's murder conviction under [the natural and probable consequence doctrine]." (Medina, supra, 46 Cal.4th at p. 921.) Detective Pickett and Villalobos both testified that DAF gang members were likely to join any altercation involving a person outside the gang's membership and that such an altercation would foreseeably result in a shooting. This evidence was sufficient to support Prado's murder conviction regardless of whether the victim was a gang member.
Numerous additional appellate decisions have affirmed murder convictions under the natural and probable consequences doctrine where the jury found a "shooting[] to be a foreseeable consequence of gang confrontations . . . . (People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 (Gonzales) [fatal shooting during gang-related fistfight was natural and probable consequence of fistfight]; People v. Montes (1999) 74 Cal.App.4th 1050, 1053, 1056 [shooting of rival gang member during retreat from fight was natural and probable consequence of gang fight in which defendant wielded a chain]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 [defendant's punching of victim during gang confrontation foreseeably led to fatal shooting of victim by fellow gang member] [disapproved on other grounds in People v. Cramer (2001) 24 Cal.4th 881, 901, fn.3]; People v. Montano (1979) 96 Cal.App.3d 221, 226 [defendant's aiding and encouragement of battery on victim foreseeably led to shooting of victim by fellow gang members].)" (People v. Ayala (2010) 181 Cal.App.4th 1440, 1449-1450 (Ayala)
B. The Trial Court Did Not Err in Instructing The Jury
Prado argues that the trial court committed numerous instructional errors that require reversal of his conviction or a reduction of his sentence. Specifically, he alleges that: (1) the trial court was required to instruct the jury that it could convict Prado of the lesser included offense of involuntary manslaughter; (2) the trial court erred in telling the jury that it could convict Prado if it concluded that he perpetrated the target crime, rather than aiding and abetting Villalobos in the commission of the target crime; (3) the trial court's instructions on the natural and probable consequences doctrine violated the "merger" doctrine; (4) the trial court erred in instructing the jury on the specific intent portion of the firearm enhancement.
1. Any error in failing to instruct the jury on the lesser included offense of involuntary manslaughter was harmless
Prado contends that the trial court erred when it failed to instruct the jury on the lesser included offense of involuntary manslaughter. Prado did not request such an instruction, but asserts that the court was required to give the instruction on its own initiative.
"The rules governing instruction on lesser included offenses are well established. . . . [A] trial court must, sua sponte, instruct the jury on lesser included offenses '"when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged."' [Citations.]" (Prettyman, supra, 14 Cal. 4th at p. 274.) In this case, the trial court instructed the jury that it could convict Prado of murder, which generally consists of the unlawful killing of a human being with malice, or the lesser included offense of voluntary manslaughter, which generally consists of the unlawful killing of a human being without malice. Prado, however, argues that the court should have also instructed the jury on involuntary manslaughter, which, according to Prado, generally applies when "'a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life. . . .'"
Prado appears to concede that because Villalobos admitted shooting Valadez in the chest from a close distance, there was no evidence to suggest that the crime Villalobos committed was anything less than voluntary manslaughter. However, Prado contends that, as to him, the evidence did support an instruction on involuntary manslaughter because, based on the evidence at trial, a jury might reasonably conclude that involuntary manslaughter was a natural and probable consequence of the assault, but that murder or voluntary manslaughter was not.
"Inherent in [Prado's] contention are the propositions that an accomplice to a criminal offense may in some circumstances be guilty of a crime less serious than that committed by the principal, and that the trial court must, even in the absence of a request by the defense, instruct the jury on a lesser included offense arguably committed by the aider and abettor, even if the evidence would not support a jury finding that the actual perpetrator was guilty only of that offense." (Prettyman, supra, 14 Cal.4th at p. 275.)
Prado's argument is predicated on People v. Woods (1992) 8 Cal.App.4th 1570 (Woods), which held that, under the natural and probable consequences doctrine, a defendant may be convicted of a lesser charge than the perpetrator of the crime. "In Woods, the defendant and a companion went in search of a rival gang member. They entered the apartment of two acquaintances of the member of the rival gang, and assaulted the occupants. As they were leaving, they saw two people getting into a car. The defendant's companion fired into the car, killing one occupant and injuring the other. At trial, the prosecution's theory was that the defendant was criminally responsible for the shootings committed by his companion, contending that the shootings were a natural and probable consequence of the crimes committed in the apartment that the defendant had aided and abetted. During deliberations, the jury asked, 'Can a defendant be found guilty of aiding and abetting a murder in the second degree if the actual perpetrator of the same murder is determined to be guilty of murder in the first degree?' The trial court answered, 'No.' The Court of Appeal held that this answer was prejudicial error. [Citation.]" (Prettyman, supra, 14 Cal.4th at p. 275.)
"The Woods court reasoned that when the prosecution contends that the defendant is guilty as an accomplice under the 'natural and probable consequences' doctrine, the defendant 'does not stand in the same position as the perpetrator'; hence, 'the aider and abettor and the perpetrator 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 and which were not.' [Citation.]" (Prettyman, supra, 14 Cal.4th at pp. 275-276.)
"Woods also addressed the question whether the trial court should have instructed the jury on the lesser included offenses of voluntary and involuntary manslaughter. Although the court concluded that under the facts of that case such instructions were unnecessary, it held that in some cases such instructions would be necessary at the trial of an aider and abettor even if the evidence did not show that the actual perpetrator was guilty only of the lesser included offense. As the court explained: 'If the evidence raises a question whether the offense charged against the aider and abettor is a reasonably foreseeable consequence of the criminal act originally aided and abetted but would support a finding that a necessarily included offense committed by the perpetrator was such a consequence, the trial court has a duty to instruct sua sponte on the necessarily included offense as part of the jury instructions on aider and abettor liability.' [Citation.] (Prettyman, supra, 14 Cal.4th at p. 276.)
In People v. Prettyman, supra, 14 Cal.4th 248, the California Supreme Court considered Woods in deciding whether a defendant who had been convicted of first degree murder under the natural and probable consequences doctrine was entitled to an instruction on involuntary manslaughter. After summarizing the holding in Woods, the court concluded that, "even if one were to assume that the trial court erred in failing to instruct the jury on involuntary manslaughter as a lesser offense necessarily included in the crime of murder, the error was harmless." (Prettyman, supra, 14 Cal.4th at p. 276.) The court explained that the "trial court instructed the jury on the crime of second degree murder, a lesser offense included within the crime of first degree murder. The jury, by convicting [the defendant] of first degree murder rather than second degree murder, necessarily rejected the possibility that the only natural and probable consequence of the crime she aided and abetted was involuntary manslaughter, a less serious crime. Because 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions' [citation], [the defendant] suffered no prejudice from any possible error in failing to instruct on involuntary manslaughter." (Ibid.)
The harmless error analysis in Prettyman applies equally here. The record shows that the trial court instructed the jury that, to convict Prado under the natural and probable consequences doctrine, it had to be satisfied beyond a reasonable doubt that "the crime of Murder, as charged in Count 1, or to Voluntary Manslaughter, a lesser included offense thereto" was "a natural and probable consequence of the commission of the 'target crime' of Assault . . . ." It also instructed the jury on the elements of murder, which requires a finding of malice, and voluntary manslaughter, which does not require a finding of malice. The jury, in turn, convicted Prado of second degree murder.
As in Prettyman, by convicting Prado of second degree murder rather than voluntary manslaughter, the jury "necessarily rejected the possibility that the only natural and probable consequence of the crime [Prado] aided and abetted was involuntary manslaughter, a less serious crime."
This harmless error analysis also applies to Prado's contention that the trial court should have instructed the jury that it could convict Prado of the lesser included offenses of assault or assault with a deadly weapon.
2. The trial court did not err in its response to a jury question inquiring whether it could convict Prado and Villalobos of different crimes
Prado contends that the trial court erred by instructing the jury that it could convict Prado of murder if it concluded that he perpetrated the target offense of assault, rather than aiding and abetting Villalobos in the assault.
Prado's argument is predicated on the trial court's response to the following jury question, which was submitted after closing argument: "If we find one defendant guilty of murder one, can we find the second defendant guilty of a lesser charge?" The court instructed the jury: "Each of the defendants in this case is being prosecuted under a different theory. With regard to defendant Villalobos, you must determine what crime, if any, he personally committed. With regard to defendant Prado, you must determine what target crime, if any, he committed; and if so, what crime, if any, was a natural and probable consequence of that target crime. [¶] Depending on what your determinations are with regard to each of those factual issues, you may arrive at verdicts which vary between the defendants."
Prado contends that, by instructing the jury that it had to "determine what target crime, if any, [Prado] committed," the court invited the jury to convict Prado under the natural and probable consequences doctrine if it found that he was the direct perpetrator of the assault, rather than an aider and abettor of the assault. The trial court's response to the jury's question does not support a reversal of Prado's conviction.
The trial court's instruction that the jury had to "determine what target crime, if any, [Prado] committed" was not an erroneous statement of law. To impose criminal liability under the natural and probable consequences doctrine, the jury did in fact have to determine what target crime, if any, Prado committed. Specifically, it had to determine whether he aided and abetted Villalobos in an assault or an assault with a deadly weapon. Prior to closing argument, the court informed the jury that a person who aids and abets a crime is liable for the commission of that crime in the same manner as an individual who directly perpetrates the crime. The court further instructed that, under the natural and probable consequences doctrine, the jury had to find that "Defendant Prado aided and abetted [the] 'target crime.'" Finally, the court instructed the jurors that they should "not single out any particular sentence or any individual point or instruction and ignore the others. Consider the instructions as a whole and each in light of all the others."
Specifically, the court instructed the jury: "Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime."
The trial court's instruction on the natural and probable consequences doctrine repeatedly emphasized that the jury had to find that Prado aided and abetted the target crime, stating: "One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted"; "In order to find Defendant Prado guilty of the crime of Murder, as charged in Count 1 . . . you must be satisfied beyond a reasonable doubt that: [¶] . . . [¶] That Defendant Prado aided and abetted that 'target crime'"; "[y]ou are not required to unanimously agree as to which originally contemplated 'target crime' the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime . . . ."
Given that the court had previously instructed the jury that aiding and abetting qualified as a commission of a crime, that it had to find that Prado aided and abetted the target crime to impose liability for murder and that the jury needed to consider these instructions in conjunction with any other instructions provided by the court, the court's subsequent statement that the jury had to "determine what target crime, if any, [Prado] committed" was not an erroneous statement of law.
Prado, however, contends that the court's response to the jury's inquiry was incomplete and misleading because the court failed to reiterate that the jury had to determine not only whether Prado committed the target crime, but that he did so as an aider and abettor rather than as a direct perpetrator. When a given jury instruction is "generally accurate, but potentially incomplete . . . it [is] incumbent on [the defendant] to request a modification if []he th[inks] it [is] misleading on the facts of th[e] case." (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118). The failure to request such a modification "forfeits the claim of error." (Id. at 1119; see also People v. Lang (1989) 49 Cal.3d 991, 1024 ["[a] party may not [complain on appeal that] 'an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language'"].)
In this case, Prado did not request that the court clarify that the jury had to determine not only that he committed the target crime, but that he did so as an aider and abettor rather than as a direct perpetrator. Prior to answering the jury's question, the court informed Prado's counsel how it intended to respond and counsel confirmed that he was "ok with [the] response." Therefore, Prado not only failed to request a modification of the potentially incomplete instruction, he affirmatively approved of the instruction. Accordingly, any issue regarding the completeness of the court's statement of the law has been forfeited.
3. The trial court's instructions on the natural and probable consequences doctrine did not violate the "merger" doctrine
Prado contends that the trial court's instructions on the natural and probable consequences doctrine permitted the jury to convict Prado of murder as a consequence of aiding and abetting an assault, thereby violating the "merger" doctrine first applied in California by People v. Ireland (1969) 70 Cal.2d 522 (Ireland).
"In Ireland, the defendant shot and killed his wife, and was convicted of second degree murder. The trial court instructed the jury on second degree felony murder with assault with a deadly weapon the underlying felony. [The California Supreme Court] held the instruction improper, adopting the 'so-called "merger" doctrine' that had previously been developed in other jurisdictions. [Citation.] [The court] explained [that] '[T]he utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule "beyond any rational function that it is designed to serve." [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault - a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.' [Citation.]" (People v. Chun (2009) 45 Cal.4th 1172, 1189.)
Prado argues that the "merger" doctrine should be extended to cases where an aider-abettor of an assault is convicted of murder under the natural and probable consequences doctrine. Our courts have previously considered and rejected this argument.
For example, in People v. Francisco (1994) 22 Cal.App.4th 1180 (Francisco), the defendant argued that "allowing the theory of aiding and abetting of an assault with a firearm to be the basis for a finding of murder [under the natural and probable consequences doctrine] violates the Ireland principles." (Id. at p. 1189.) The appellate court disagreed, explaining that "aiding and abetting is one means under which derivative liability for the commission of a criminal offense is imposed. It is not a separate criminal offense. [Citation.] As an aider and abettor, it is the intention to further the acts of another which creates criminal liability. The '"natural and probable consequences"' standard under CALJIC 3.02[,] which allows a finder of fact to render a verdict on derivative aider and abettor liability, presents an 'all-encompassing standard for proper lay application of law to relevant evidence on the issue of legal causation of a criminal act.' [Citation.] If the principal's criminal act which is charged to the aider and abettor is a reasonably foreseeable consequence to any criminal act of that principal, and is knowingly aided and abetted, then the aider and abettor of such criminal act is derivatively liable for the act charged. [Citation.] For this reason, the logical and legal impediments to criminal liability as found in Ireland, are not applicable and do not have persuasive value with respect to limiting an aider and abettor's liability." (Id. at p. 1190.)
Similarly, in People v. Karapetyan (2006) 140 Cal.App.4th 1172 (Karapetyan), the Third District ruled that "[t]he logical and legal impediments to felony murder liability discussed in Ireland are inapplicable and do not limit the liability of an aider and abettor [convicted under the natural and probable consequences doctrine]." (Ibid.) The court explained that Ireland's merger rule might apply "if the law stated that anyone who aided and abetted an assault that ended in death would be guilty of murder, whether or not the death was a natural and probable consequence of the assault. That would be a merged felony murder based on assault and would be prohibited by Ireland. [Citation.] However, the natural and probable consequences doctrine operates independently of the second degree felony-murder rule. [Citation.] The natural and probable consequences doctrine does not merge all assaults into the felony-murder rule. Rather, it is a theory of liability for murder that applies when the assault has the foreseeable result of death. For aider and abettor liability, it is the intention to further the acts of another that creates criminal liability and not the felony-murder rule. [Citation.]" (Id. at p. 1178.)
We see no basis for distinguishing this case from the holdings in Francisco and Karapetyan.
4. The trial court did not err in instructing the jury on Prado's firearms enhancement
Prado argues that we must reverse the firearm enhancement imposed pursuant to his section 12022.53, subdivisions (d) and (e)(1) because of an error in the jury instructions. To establish that Prado qualified for an enhancement under section 12022.53, the prosecution had to show that: (1) during the commission of an enumerated felony (murder), a principal in the offense "personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury . . . or death"; (2) Prado was a principal in the offense; and (3) Prado "violated subdivision (b) of Section 186.22." (See § 12022.53, subds (d) & (e)(1).) Prado argues that the trial court improperly instructed the jury on the third element: whether he violated section 186.22, subdivision (b).
Section 186.22, subdivision (b) applies when "any person . . . 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 . . . ." The court's instruction on the section 186.22 allegation stated, in relevant part: "The essential elements of this allegation are: [¶] 1. The crime[] charged w[as] committed for the benefit of, at the direction of, or in association with a criminal street gang; and [¶] 2. The[] crime[] w[as] committed with the specific intent to promote, further, or assist in any criminal conduct by gang members." An additional instruction regarding "concurrence of act and specific intent" stated that, for the purposes of the "gang allegation, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists . . . the allegation to which it relates is not true."
Prado argues that the court's instructions failed to inform the jury that, before finding that he violated section 186.22, subdivision (b), it had to find that he specifically intended to commit the murder of Valadez to promote or assist criminal conduct by gang members. Prado further asserts that by separately instructing the jury that the gang allegation required a "specific intent in the mind of the perpetrator," the court invited to the jury to conclude that Prado violated section 186.22, subdivision (b) based solely on a finding that Villalobos - who actually perpetrated the murder - specifically intended to aid the gang when murdering Valadez.
Prado's argument is predicated on the assumption that where, as here, multiple principals commit an offense, section 186.22, subdivision (b) can only be applied to each principal who is shown to have personally committed the offense with the specific intent to promote or assist criminal conduct by gang members. Stated more simply, Prado contends that he cannot be deemed to have violated section 186.22, subdivision (b) based on a finding that Villalobos committed the crime with the specific intent to promote or assist criminal conduct by gang members. Rather, according to Prado, the prosecution was required to independently prove that he also committed the murder with such intent.
Prado's argument conflicts with the plain language of section 186.22, subdivision (b), which applies when "any person . . . is convicted of a felony committed for the benefit of . . . any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." The statute does not state that the defendant must be convicted of a felony that he or she personally committed for the benefit of the gang with the requisite specific intent. It says only that: (1) the person must be convicted of a felony, and (2) the felony was committed for the benefit of the gang, with the requisite specific intent. Therefore, under the plain language of the statute, if a felony is perpetrated by multiple principals, section 186.22, subdivision (b) may be applied to all of the principals upon a showing that any one of them committed the crime for the benefit of the gang with the requisite intent.
Our interpretation of the statute finds support in People v. Garcia (2002) 28 Cal.4th 1166 (Garcia), in which the California Supreme Court interpreted a prior version of section 12022.53, subdivision (d) that is essentially identical to the current version. The court explained that, "to find an aider and abettor. . . liable under section 12022.53, subdivision (d), the prosecution must plead and prove that (1) a principal committed an [enumerated] offense . . . ; (2) a principal intentionally and personally discharged a firearm and proximately caused great bodily injury or death to any person . . . during the commission of the offense; (3) the aider and abettor was a principal in the offense; and (4) the offense was 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.'" (Id. at p. 1174.) The court's description of the final element, which is consistent with the language of section 186.22, subdivision (b), suggests that if any principal committed the offense for the benefit of the gang, and with the requisite specific intent, an aider and abettor is eligible for the firearm enhancement under section 12022.53, subdivision (d).
If we were to accept Prado's interpretation of section 186.22, subdivision (b), it would effectively preclude the use of section 12022.53 or section 186.22 enhancements against aiders and abettors convicted under the natural and probable consequences doctrine. "By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense. [Citation.]" (Canizalez, supra, 197 Cal.App.4th at p. 852.) Because defendants who are prosecuted under the natural and probable consequences doctrine invariably lack the intent to commit the nontarget crime, they also invariably lack the specific intent described in section 186.22, subdivision (b). Our appellate courts, however, have repeatedly affirmed the imposition of section 12022.53 enhancements on aiders and abettors convicted under the natural and probable consequences doctrine. (See generally Gonzales, supra, 87 Cal.App.4th 1; Ayala, supra, 181 Cal.App.4th 1440.)
Because we disagree with Prado's assertion that the jury was required to find that he personally committed the murder of Valadez with the specific intent described in section 186.22, subdivision (b), we find no error in the court's instructions.
C. The Natural And Probable Consequences Doctrine Does Not Require The Prosecution to Prove That an Aider and Abettor Shared the Perpetrator's Mental State
Prado argues that the natural and probable consequences doctrine is no longer a valid theory of criminal liability insofar as it permits an aider and abettor to be convicted of murder without requiring the prosecution to prove that the aider and abettor acted with malice. In support, Prado cites People v. McCoy, supra , 25 Cal.4th 1111, in which the Supreme Court held that, to convict an aider and abettor of murder, the prosecution must show that the aider and abettor "knows and shares the murderous intent of the actual perpetrator." (Id. at p. 1118.) McCoy explained that although an aider and abettor "is liable for [the perpetrator's acts] as well as [his or her] own actions," the aider and abettor is liable only for his or her own mental state, and not the mental state of the perpetrator. (McCoy, supra, 25 Cal.4th at p. 1118.) Prado contends that, under McCoy, a defendant cannot be held liable for murder under the natural and probable consequences doctrine absent a showing that he personally acted with malice.
Prado's argument overlooks the fact that McCoy repeatedly clarified that its holding did not apply to aider and abettor cases involving application of the natural and probable consequences doctrine. Specifically, the court explained: "It is important to bear in mind that an aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' [Citation.] Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. [Citation.] In this case, however, . . . only an aider and abettor's guilt of the intended crime is relevant here. Nothing we say in this opinion necessarily applies to an aider and abettor's guilt of an unintended crime under the natural and probable consequences doctrine." (McCoy, supra, 25 Cal.4th at p. 1117.)
The court emphasized this point repeatedly throughout its opinion: "outside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator" (McCoy, supra, 25 Cal.4th at p. 1118); "when guilt does not depend on the natural and probable consequences doctrine . . . the aider and abettor must know and share the murderous intent of the actual perpetrator" (ibid.); "when guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrator's intent." (McCoy, supra, 25 Cal.4th at p. 1118, fn. 1.)
In People v. Canizalez, supra, 197 Cal.App.4th 832, this district concluded that the language in McCoy demonstrated that the court's holding "was only [intended] to apply 'when guilt does not depend on the natural and probable consequences doctrine. . . .' [Citation.]" (Id. at p. 851.) Canizalez further explained that "[a]ider and abettor culpability under the natural and probable consequences doctrine for a nontarget, or unintended, offense committed in the course of committing a target offense has a different theoretical underpinning than aiding and abetting a target crime. Aider and abettor culpability for the target offense is based upon the intent of the aider and abettor to assist the direct perpetrator commit (sic) the target offense. By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime." (Id. at p. 852)
The Supreme Court has never questioned or disapproved of the holding in Canizalez, which rejects the notion that the prosecution must prove that an aider and abettor acted with the requisite mental state when pursuing a murder conviction under the natural and probable consequences doctrine.
Prado also contends that, in People v. Concha (2009) 47 Cal.4th 653, the Supreme Court extended McCoy's reasoning to murder cases arising under the natural and probable consequences doctrine. Concha, however, was a provocative act murder case. The decision did not involve the natural and probable consequences doctrine and is therefore not relevant here. (See People v. Banks (1993) 6 Cal.4th 926, 945 ["'"an opinion is not authority for a proposition not therein considered."' [Citations.]"].)
D. The Natural and Probable Consequences Doctrine Does not Violate Due Process Requirements
Prado contends that the natural and probable consequences doctrine "Violates Due Process Of Law Because It Substitutes A Negligence Standard For The Mental State Of Malice Aforethought Required For A Conviction Of Murder." Prado acknowledges that the California Supreme Court specifically considered and rejected this argument in People v. Coffman and Marlow (2004) 34 Cal.4th 1 (Coffman). The defendant in Coffman argued "that the application of the natural and probable consequences doctrine. . . . unconstitutionally predicates murder liability on mere negligence." (Id. at p. 108.) The court "reject[ed] the argument," explaining that "[l]iability as an aider and abettor requires knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act; in a case in which an offense that the perpetrator actually commits is different from the originally intended crime, the natural and probable consequences doctrine limits liability to those offenses that are reasonably foreseeable consequences of the act originally aided and abetted." (Ibid.)
Prado, however, argues that Coffman's "rationale for upholding the [natural and probable consequences] doctrine against a due process challenge is no longer valid after the California high court's . . . . holding in McCoy," which, according to Prado, "stands for the proposition that the aider and abettor's mens rea is determined independently from the perpetrator's."
There are two problems with this argument. First, Coffman was decided three years after McCoy. Second, unless and until the Supreme Court actually invalidates its holding in Coffman, we are constitutionally obligated to abide by its ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity))
Prado also appears to argue that we should eradicate the natural and probable consequences doctrine because it results in irrational and unfair outcomes, especially in gang cases where an assault escalates into a shooting. Although application of the natural and probable consequences doctrine may sometimes result in harsh outcomes, our Supreme Court has ruled that the doctrine is "an 'established rule' of American jurisprudence" that has been "embrace[d]" in California. (Prettyman, supra, 14 Cal.4th at p. 260.) Moreover, the court has repeatedly affirmed murder convictions under the natural and probable consequences doctrine in the context of gang assaults that escalated into shootings. (See Medina, supra, 46 Cal.4th 913; People v. Gonzales and Soliz (2011) 52 Cal.4th 254.)
E. Prado's Sentence Does not Constitute Cruel and Unusual Punishment
Finally, Prado argues that his sentence violates the federal and state constitutional guarantees against cruel or unusual punishment. Prado received a sentence of 15 years to life sentence for second degree murder and a consecutive sentence of 25 years to life for a firearm use enhancement under section 12022.53, subdivisions (d) and (e)(1). "'Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]' [Citation.]" (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)
Article I, section 17 of the California Constitution provides: "Cruel or unusual punishment may not be inflicted . . . ." A prison sentence violates Article I, Section 17, if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) In making this determination, "'we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." [Citation.]'" (People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1432.) "[The] defendant must overcome a 'considerable burden' to show the sentence is disproportionate to his level of culpability. [Citation.] Therefore, '[f]indings of disproportionality have occurred with exquisite rarity in the case law.' [Citation.]" (People v. Em (2009) 171 Cal.App.4th 964, 972 (Em).)
Generally, when determining "whether a particular sentence is disproportionate" under California law, we also "compare the punishment imposed with punishments prescribed by California law for more serious offenses" and "compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense." (Em, supra, 171 Cal.App.4th at p. 972.) Here, however, Prado has not argued that the sentence exceeds the punishments prescribed in California for more serious offenses nor has he asserted that other jurisdictions impose lesser punishments for the same offense. As a result, we need not consider these factors. (Ibid.)
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The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments." It applies to the states through the Fourteenth Amendment and "'contains a "narrow proportionality principle" that "applies to noncapital sentences."'" (Ewing v. California (2003) 538 U.S. 11, 20.) As with claims under the state Constitution, among the factors a court may consider in determining whether a sentence violates the federal constitutional guarantee against cruel and unusual punishment is "the gravity of the offense and the harshness of the penalty." (Solem v. Helm (1983) 463 U.S. 277, 292.) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences [under the federal Constitution] will be exceedingly rare." (Rummell v. Estelle (1980) 445 U.S. 263, 272.)
In this case, Prado argues that his sentence was disproportionate because "the jury . . . found Mr. Prado guilty of nothing more than simple assault as the target offense." Prado further contends that "[t]he causal chain between [his] conduct and the shooting by Villalobos was unexpected and unforeseeable." We disagree with both of these assertions. The jury did not merely find that Prado aided and abetted an assault. Rather, it concluded that Prado engaged in criminal conduct that foreseeably resulted in a shooting death. Moreover, by convicting Prado under the natural and probable consequences doctrine, the jury necessarily rejected Prado's contention that there was no causal link between his conduct and the death of Valadez, or that Villalobos's conduct was unexpected or unforeseeable.
The evidence in this case showed that Prado was directly responsible for the series of events that led to Valadez's death. Prado attended a party with other members of DAF, which was a violent street gang that had been involved in dozens of prior firearms offenses. Prado and other members of DAF frequently possessed firearms. Prado had previously been convicted of a firearm felony, and was convicted of a second firearm felony in this case. He had also seen Villalobos in possession of a weapon on multiple past occasions.
A witness who saw the initial altercation that led to Valadez's shooting stated that, before attacking Sanchez, Prado referenced his gang and displayed his gang tattoos. The apparent motive for the attack - that Sanchez took issue with the fact that Prado was hitting on his girlfriend - was extremely trivial. Multiple witnesses, including co-defendant Villalobos, testified that members of DAF were obligated to join any altercation between a member of DAF and individuals who were not a member of the gang. There was also extensive testimony that such an altercation could foreseeably escalate
Given these circumstances, it was - or should have been - foreseeable to Prado that his attack on Sanchez would result in a shooting death. Moreover, the evidence demonstrates that Prado's conduct - engaging in a fight in the presence of other DAF gang members who were likely armed and were obligated to join the altercation -presented a significant risk to society.
Our appellate courts have affirmed the imposition of even greater sentences under facts that are analogous to those presented here. In Gonzales, supra, 87 Cal.App.4th 1,the appellate court considered the claim of one of the defendants, Steven, that his sentence of 50 years to life constituted cruel or unusual punishment because it was based on acts he characterized as "engaging in a fistfight of which murder was the natural and probable consequence." (Id. at p. 16.) The court rejected this claim, noting that there was evidence that Steven knew that the shooter had a gun, and emphasizing the gang related nature of the offense. The Gonzales court reasoned: "The Legislature has chosen to severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang. It has done so in recognition of the serious threats posed to the citizens of California by gang members using firearms. The penalty imposed on Steven was not out of proportion to this offense and does not constitute cruel or unusual punishment." (Id. at p. 19.)
Similarly, in Em, supra, 171 Cal.App.4th 964, the defendant argued that a 50 year to life sentence for first degree murder was cruel and unusual because he was only an aider and abettor who had played a "passive" role in the offense, and had not "pulled the trigger." (Id. at p. 975.) The evidence at trial showed that the defendant and his companion, who were both gang members, approached a man sitting in a car and decided to rob him and steal his car. The defendant's companion demanded the man's money and car keys and then shot him multiple times. The appellate court rejected the defendant's challenge to his sentence, explaining that "armed robbery and the use of a gun by a gang member in the commission of a crime present a significant degree of danger to society. Life sentences pass constitutional muster for those convicted of aiding and abetting murder, and for those guilty of felony murder who did not intend to kill. [Citation.] Additionally, a sentence enhancement of 25 years to life is not disproportionate to a violation of Penal Code section 12022.53; the Legislature has determined that a significant increase in punishment is necessary and appropriate to protect citizens and deter violent crime." (Id. at pp. 972-973.)
As in Gonzales and Em, we find no basis for concluding that Prado's sentence shocks the conscience.
DISPOSITION
The trial court's judgment is affirmed.
ZELON, J. We concur:
WOODS, Acting P. J.
JACKSON, J.