Opinion
B228444
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO RAMIREZ, JR., Defendant and Appellant.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, and Thomas C. Hsieh, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA079230)
APPEAL from a judgment of the Superior Court for the County of Los Angeles. William R. Pounders, Judge. Affirmed.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
SUMMARY
In successive prosecutions, two juries convicted defendant Francisco Ramirez, Jr., of three first degree murders. The first murder victim was Raymundo Flores. Defendant and Ernesto Mejorado murdered Flores during a robbery, but the identity of the actual perpetrator could not be established. The next two victims, Jennifer Sanchez and America (or Erica) San Miguel, were murdered 12 days after Flores by defendant and several codefendants, two of whom (Sergio Mejorado and Gabriel Arceo) were found to be the actual perpetrators.
In the first trial (Ramirez I), defendant was convicted of the Sanchez and San Miguel murders and of conspiracy to murder Sanchez and San Miguel. Firearm and gang enhancements, as well as special circumstances allegations of multiple murders and murder of a witness (San Miguel), were found true. The jury could not reach a verdict on the Flores murder or on the witness-murder special-circumstance allegation as to the Sanchez murder. In the second trial (Ramirez II), defendant was convicted of the Flores murder, and the jury found robbery-murder special circumstance, gang, and firearm discharge and use (by a principal) allegations to be true. Neither jury could agree on the death penalty, and defendant was sentenced to concurrent terms of life without parole, as well as additional terms of imprisonment for the enhancements.
On appeal, defendant makes three claims. He contends the trial court erred in instructing both juries that a person who aids and abets a crime and the direct perpetrator of the crime are "equally guilty." He contends the evidence was insufficient to support his liability as an aider and abettor or coconspirator in the murders of Sanchez and San Miguel. And he asserts the trial court had a sua sponte duty to give a unanimity instruction in connection with the overt acts alleged to support the conspiracy to murder charges.
We find no prejudicial error and affirm the judgment.
FACTS
In Ramirez I, defendant was tried together with codefendants Ernesto Mejorado, Robert Borjas and Gabriel Arceo. The jury could not reach any verdicts as to Borjas. This court affirmed the convictions of Arceo (for the San Miguel and Sanchez murders) and Ernesto Mejorado (for all three murders). (People v. Arceo (2011) 195 Cal.App.4th 556.) In this case, Ramirez II, defendant was retried for the Flores murder (and codefendant Sergio Mejorado was tried, convicted and sentenced to death for the Sanchez and San Miguel murders). Much of our narration of the facts is substantially identical to the fact recitation in Arceo, at pages 560-563, 565-569, supplemented by the evidence in Ramirez II concerning the Flores murder.
1. Overview of the Murders and the Participants
Defendant was a member of a gang, the Krazy Ass Mexicans (or KAM), as were Arceo and Ernesto Mejorado. Sergio Mejorado (Ernesto Mejorado's half brother) was a member of a different gang. (Hereafter, we refer to Ernesto and Sergio by their first names to avoid confusion.) Defendant and Ernesto participated in the Flores murder and all four gang members were participants in the Sanchez and San Miguel murders.
Defendant and Ernesto, who were good friends, lived in a converted garage adjacent to a house (the Lopez house) owned by Ernesto's grandmother, Maria Lopez. Maria Lopez lived there with her sons Adan and Ramon Lopez, and Ramon's son David Lopez. Another grandson, Tommy Lopez, also a gang member, lived elsewhere with his then-girlfriend, Jessika Merrill. Arceo and Sergio also lived elsewhere. Except for Tommy, none of the other Lopezes was a gang member. (Again, to avoid confusion, we refer to all of the Lopezes by their first names.) Jennifer Sanchez and America (or Erica) San Miguel, two young women described as "druggies," spent a lot of time at the garage of the Lopez house with defendant and Ernesto.
The first murder victim was Raymundo Flores. Flores drove a green Impala with special chrome rims and electronic equipment, and there was evidence suggesting he had recently come into possession of $18,000 and that this was known to defendant and Ernesto. In the early morning hours of April 12, 2005, Flores was shot in the back of the head with a .380-caliber round from a semiautomatic handgun. He was found face down in an alley near the Lopez house, with his pants pockets turned out. He later died. That same morning, Ernesto knocked on the door of the Lopez house and told his cousin, David, who had been sleeping in the living room, that "[w]e murdered somebody." Ernesto repeated these words more than once and appeared scared. David assumed Ernesto was referring to himself and defendant. A few hours later, when he got up to go to work, David saw a green car with nice rims in the driveway, covered with sheets, and recognized the green Impala as belonging to Flores.
The next day, defendant and Ernesto took the rims off the car, replaced the tires with spare tires, and took televisions and other electronic equipment from the car. During this time, Ernesto told David the car belonged to Flores and that they had killed Flores. Defendant was present when Ernesto made these statements, and just stared at Ernesto, "like he didn't want [Ernesto] to tell [David] anything." While defendant and Ernesto were stripping the car, Sanchez, one of the "druggies," was present, as were Tommy, his girlfriend Merrill, and Ernesto's sister. Defendant drove away in the stripped car with Sanchez, and Ernesto followed with the others. Ernesto had a milk container filled with gas, and David later saw Ernesto with burns on his face. Police found the car engulfed in flames; the entire interior had been gutted by fire.
The next two victims were Sanchez and San Miguel, the two young women who were frequently at the garage of the Lopez house with defendant and Ernesto. Twelve days after the Flores murder, the two young women were in the garage with defendant, Ernesto, Arceo, Sergio, David, and Borjas. In the course of the evening, after a conclave in the bathroom among defendant, Arceo, Sergio and Borjas, Borjas said, "We're going to tie these bitches up," which David understood to mean that Sanchez and San Miguel knew too much and had to be "gotten rid of."
David left the garage after some comments by Sergio that David understood as an indirect threat to David, and went to the Lopez house to go to bed. Thereafter, Sergio and Arceo killed Sanchez and San Miguel. In the morning, Ernesto woke up David and asked to borrow his car. David gave Ernesto the keys and went back to sleep. When he woke up again and went outside, Ernesto, Arceo, Sergio and Borjas were there. Borjas told David not to go into the garage because "they had just killed Jennifer and Erica." Arceo told David that Sergio had grabbed San Miguel, shoved her into the bathroom, and shot her a couple of times, and that he (Arceo) then took the gun from Sergio, grabbed Sanchez by her hair, and "put a bullet in the back of her head." Sergio bragged about the shooting as well.
Defendant and Ernesto loaded the bodies (which had been dragged from the garage to the living room of the Lopez house) into the trunk of David's car; Sergio and Arceo were gone by this time. Defendant left in the car with the bodies, which were found the next day in Tulare County, burned and unrecognizable. Adan, David, Tommy and Merrill cleaned up the house, and Adan painted the garage. Defendant brought David's car back, and David, Tommy and Merrill cleaned it.
2. The Aftermath of the Murders
After the murders of San Miguel and Sanchez, defendant and Ernesto did not return to the Lopez house again, and Adan moved into the garage.
The three killings may have remained unsolved were it not for Merrill, Tommy's girlfriend (who died before the trial). Several days after the murders of Sanchez and San Miguel, Merrill made a then anonymous call to the Tulare County police, reporting the three murders. This resulted in a warrant to search the Lopez house, multiple interviews of David and Adan as well as interviews of Merrill, a search of a house in Delano belonging to Ernesto's mother, and a search of David's car. The bodies of San Miguel and Sanchez were eventually identified through fingerprints on one of the bodies and teeth from the other body.
Defendant was apprehended in Mexico and returned to the United States by a United States Marshall in August 2006.
3. The Charges
In the operative fifth amended information, defendant was charged with the San Miguel and Sanchez murders (counts 1 and 2 respectively), with the Flores murder (count 3), and with conspiracy to commit the murders of San Miguel and Sanchez (counts 5 and 6 respectively). (Pen. Code, § 187, subd. (a) & § 182, subd. (a)(1).) The information alleged firearm use by a principal in connection with the three murders (§ 12022.53, subds. (d) & (e)(1), (c) & (e)(1), (b) & (e)), and personal gun use by defendant in connection with the Flores murder (§ 12022.53, subds. (b), (c), & (d)). It further alleged that the murders were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and alleged special circumstances: that San Miguel and Sanchez were killed because they were witnesses to a crime (§ 190.2, subd. (a)(10)), multiple murders (§ 190.2, subd. (a)(3)), and that Flores was murdered during the commission of a robbery (§ 190.2, subd. (a)(17)).
Count 4 charged Tommy with concealing and aiding the others to avoid arrest and punishment for the murders (Pen. Code, § 32). The charges against Tommy were disposed of separately.
All statutory references are to the Penal Code.
After Ramirez I, the prosecution filed the sixth amended information. As to defendant, the information alleged, in lieu of the multiple murder special circumstance, defendant's prior murder convictions in Ramirez I. It was agreed the jury would learn of the allegation only if defendant were convicted of the Flores murder.
4. The Trials and Verdicts
a. Ramirez I - the trial
The trial in Ramirez I extended over several months and more than 60 witnesses testified in the guilt phase. In the end, defendant's convictions for the murders of San Miguel and Sanchez rested on the testimony of David and Adan, which we describe in more detail below. The jury also heard various parts of Jessika Merrill's statements that were declarations against interest. Detective Martinez, who interviewed Merrill, testified that Merrill told him she helped to clean up the blood from the Lopez home, and "we helped them clean the trunk" of David's car, and talked about "how we blew up the car" (referring to Flores's car). After Sanchez and San Miguel were murdered, Merrill eventually called the police and told them what happened.
Evidence relating to the Flores murder will be described post in connection with the trial in Ramirez II, and evidence will be discussed as necessary in connection with the specific issues defendant raises.
Evidence, including expert testimony, was presented at both trials to prove the gang allegations. Because defendant raises no issue on appeal as to the sufficiency of that evidence, we need not describe or discuss the testimony on that topic.
i. David
After the Flores murder, David observed that Sanchez "couldn't go nowhere without -- without them [(defendant and Ernesto)] being with her or without their authorization." "She would go to the alley, you know, they had to be aware of it. She couldn't just go off anywhere by herself." On one occasion, Sanchez tried to go to the alley, "and I think [Ernesto] ran after her and then asked her where she was going." It appeared to David that "they weren't letting her leave."
Twelve days after the Flores murder, Sanchez and San Miguel were in the garage socializing and drinking beer with defendant, David, Ernesto, Arceo, Sergio, and Borjas. In the course of the evening, defendant, Arceo, Sergio, and Borjas were talking in a group, and Arceo had a .380-caliber or nine-millimeter handgun. The four of them rushed into the bathroom and David followed them because he wanted to know what was going on. Defendant and Sergio then walked out of the bathroom, and Borjas said, "We're going to tie these bitches up," which David understood to mean that Sanchez and San Miguel "knew too much so they had to get rid of them." David's impression was that defendant and Sergio "didn't want me to hear anything. Every time I got close to them, they kind of like backed away from me." Sergio said something like "I have home girls that are down to kill," or "down for murder." David took Sergio's comment as meaning "that the girls are down to kill people" and as an indirect threat to David, so David left the garage and went to bed.
In the morning, Ernesto woke David up and asked to borrow David's car. Sergio was sitting on the couch and was sweating. David gave Ernesto the keys and went back to sleep. When he woke up again and went outside, Ernesto, Arceo, Sergio and Borjas were there. Borjas told David not to go into the garage because "they had just killed Jennifer and Erica." Arceo bragged about the murders, telling David that Sergio had grabbed San Miguel, shoved her into the bathroom, and shot her a couple of times, and that he (Arceo) then took the gun from Sergio, grabbed Sanchez by her hair, and shot her. Sergio bragged about his part in the murders as well.
David said that Adan came outside the house and asked David if he had seen what was inside, referring to the bodies. David then went inside and saw the bodies for the first time. Defendant, Ernesto and Sergio loaded the bodies into the trunk of David's car. David and Adan held up blankets while the bodies were being loaded in the car, so that no one in the neighboring church parking lot could observe what was being done.
After the bodies were loaded up, defendant drove the car away. David never saw defendant return to the Lopez house after that time, nor did he ever see Ernesto again. David helped clean up the house, "meaning mop up blood and stuff like that." David painted and cleaned up "the blood and stuff in the shower." Tommy and Merrill were present when the house was being cleaned up.
David later called Ernesto to tell him he (David) wanted his car back. Ernesto was angry at David for demanding the return of his car and David felt threatened. Defendant eventually brought the car back to the driveway of the Lopez house. One of the sides of the car was "trashed." David took the car to Tommy's house and David, Tommy and Merrill cleaned the trunk of his car. Defendant told David to burn the car, but David refused; defendant then told him to change the tires, and David did so.
David said that after the murders, defendant and Ernesto fled to Guadalajara and tried to get David to go with them. David moved to Delano to live with his brother.
David was interviewed by the police several different times in May 2005, and twice more in May and July 2006. During his first interview, he lied to the police to protect Ernesto and told them he did not know anything. In subsequent interviews, he told "part of the truth . . . and some I held back." Sometime after the May 2005 interviews, David moved to Oregon. He was arrested in Oregon by federal agents in March 2006, and told them that his cousin (or cousins) "shot couple of girls for no reason" and all he did was to clean up blood.
David was charged with aiding and abetting after the fact (§ 32). He pled guilty and was put on probation after serving some time in county jail.
ii. Adan
Adan is the uncle of Ernesto, David and Tommy, and lived in the Lopez house. Ernesto was his favorite nephew. Like David, Adan was arrested and pled guilty to charges of aiding in the murders after the fact (§ 32). He was in custody when he testified in Ramirez I because he had called Detective Martinez and told him he would not testify unless Ernesto was released. He said that he feared for his life because he was testifying, and when he talked to the police in May 2005, he was concerned that he might be killed by friends or "homeboys" of Arceo's or Sergio's. Adan told police he lied to them in his first interview because, when defendant, Arceo and Sergio's homeboys -their fellow gang members -- "find out that I'm telling you that I told you everything, they're going to be -- they're going to be on me and they're going to try to kill me. That's why I lied the first time."
When Adan woke up on the morning after Sanchez and San Miguel were killed, he saw Sergio sitting on the couch. He went back to sleep and when he woke up again, he saw San Miguel's body wrapped in a blanket behind the couch. He "got freaked out" and went outside, where he saw defendant and Sergio. He eventually saw Ernesto walk out of the garage.
Sergio told Adan that he had gone in the bathroom and shot Sanchez while she was standing in the shower. Sergio said he was going to shoot San Miguel, but Arceo told Sergio that he would take care of San Miguel. Sergio handed the gun to Arceo, and Arceo shot San Miguel in the head. At trial, Adan said he never spoke to Arceo, but Adan told the police that Arceo told him (Adan) the same story that Sergio told him, including that Arceo told Sergio to give him (Arceo) the gun, Sergio did so, "'and that's when he [(Arceo)] got [San Miguel] and took her to the restroom.'"
David's and Adan's accounts conflicted in that David testified that Arceo said that Sergio killed San Miguel and he (Arceo) killed Sanchez, while Adan testified that Sergio and Arceo told him that Sergio killed Sanchez and Arceo killed San Miguel.
Adan saw that Sanchez's body was put in his (Adan's) duffle bag. Adan testified he saw defendant and Borjas loading the bodies into a car, but when he was first interviewed by Detective Martinez, Adan said "it was [defendant] and [Ernesto] loading the bodies," and Sergio and Arceo were gone by this time.
After he found out how Sanchez and San Miguel were killed and after the bodies were moved, Adan helped Ernesto clean up the house. He washed down the blood in the driveway and mopped up the blood in the living room. Tommy and Merrill arrived during the cleanup of the house.
Adan told the police that Ernesto told him that Arceo and Sergio killed Sanchez and San Miguel. Adan told police that defendant told him that they killed the girls because they were afraid Sanchez was going to snitch on them (about the Flores murder). Defendant drove away with the bodies and Borjas burned clothing in the alley.
b. Ramirez I - the verdict
Defendant was convicted of the murders of San Miguel and Sanchez (and the jury found true the related firearm and gang allegations, as well as the special circumstance allegations of witness killing in the San Miguel murder and multiple murders), and was convicted of the conspiracy counts as well. The jury could not reach a verdict on the Flores murder (or the witness killing allegation as to Sanchez), and the trial court declared a mistrial as to that count and allegation.
c. Ramirez II - the trial
Defendant's conviction in Ramirez II for the Flores murder also hinged on the testimony of David and Adan.
i. David
David was interviewed six times by the police and admitted he lied and withheld information in some of the interviews.
David was asleep in the living room of the Lopez house on the night of the Flores murder, and was awakened by pounding on the front door. David opened the door and Ernesto and defendant were there. (David said on cross-examination that defendant was not there when he opened the door, and he also told detectives in a May 2005 interview that Ernesto was alone when he opened the door.) Ernesto appeared nervous and scared and said, "We murdered somebody," more than once. When Ernesto said "we," David "took it to mean [Ernesto and defendant] . . . ." Ernesto asked David if he had heard a gunshot, and David said, "No, why?" Ernesto said they had murdered someone in the alley. Ernesto grabbed some things from the kitchen and ran outside.
When he woke the next morning, David saw Flores's car covered by sheets, and saw that the police had taped off the alley. David went to work, and when he returned, he saw defendant and Ernesto stripping Flores's car of its rims, sound system, navigation system, and televisions, and replacing the rims with spares. Tommy, Merrill, Sanchez and Ernesto's sister were there when the car was stripped. While the car was being stripped, Ernesto told David the car belonged to Flores and they had killed Flores. Defendant, who was there when Ernesto made these statements, stared at Ernesto, "like he didn't want [Ernesto] to tell [David] anything." Defendant drove away in the stripped car with Sanchez, and Ernesto followed with the others. Ernesto had a milk container filled with gas, and David later saw Ernesto with burns on his face.
Ernesto owned a .380-caliber gun, and David had seen defendant handle that gun. After Sanchez and San Miguel were killed, defendant told David their murders had to do with the Flores murder. David also testified that, days before the Flores murder, a woman (who David told police may have been Flores's girlfriend) told defendant and Ernesto that Flores had $18,000 in tax refund money.
ii. Adan
Adan was also asleep in the living room of the Lopez house on the night of the Flores murder, when he was awakened by Ernesto's knocking on the door. Adan opened the door and Ernesto was there and said something. Adan went back to the couch and went to sleep. (Adan also testified that when he answered the door, he saw Ernesto and did not see defendant.)
The next morning, he saw the green Impala, which he knew belonged to Flores, under some covers. Later that day, he saw defendant and Ernesto taking the rims off the car. Defendant drove the green Impala away, and Tommy and Merrill followed him. Ernesto left with defendant or with Tommy and Merrill, and Adan later saw Ernesto with burns on his face.
Adan testified that defendant told him he had shot Flores in the back of the head with a .380-caliber gun. Defendant told Adan he was afraid Sanchez and San Miguel knew what Ernesto and he had done to Flores and that he did not trust the women. On cross-examination, Adan testified that Ernesto told him that he had killed Flores.
d. Ramirez II - the verdict and the sentence
The jury found defendant guilty of first degree murder of Flores and found the robbery-murder special circumstance, gang, and principal firearm discharge and use allegations to be true. The jury found the personal firearm use and discharge allegations not true. After the jury found defendant guilty of the Flores murder, he admitted the prior murder-conviction special-circumstance allegation. The jury could not agree on the death penalty, and the trial court declared a mistrial; the prosecution did not seek retrial of the penalty phase.
The court sentenced defendant to life in prison without the possibility of parole on count 1 (the San Miguel murder), plus a consecutive 25 years to life for a principal's personal and intentional discharge of a firearm causing death (§ 12022.53, subds. (d) & (e)(1)) with a section 186.22, subdivision (b) gang allegation found to be true. The court imposed the same sentence on counts 2 and 3 (the Sanchez and Flores murders), and ordered those sentences to run concurrently with the sentence on count 1. The court stayed punishment on the conspiracy counts (§ 654), and made various other orders that are not at issue on this appeal.
DISCUSSION
Defendant asserts three claims on appeal: that the trial court erred in instructing the jury that a person who aids and abets is "equally guilty" of the crime committed by the direct perpetrator; that his convictions for the Sanchez and San Miguel murders were not supported by substantial evidence; and that the trial court should have given a unanimity instruction in connection with the conspiracy counts. None has merit.
1. The "Equally Guilty" Language of CALJIC No. 3.00
The prosecution's theory in Ramirez I was that defendant was guilty of the Sanchez and San Miguel murders (actually committed by Sergio and Arceo) as an aider and abettor or a coconspirator, and that defendant was the direct perpetrator in the Flores murder. In Ramirez II, the prosecutor argued defendant was guilty of the Flores murder either because he was the actual killer or because he aided and abetted or conspired with Ernesto.
Defendant contends the trial court committed federal constitutional error by instructing the juries, both in Ramirez I (Sanchez and San Miguel) and Ramirez II (Flores), with CALJIC No. 3.00, that an aider and abettor is "equally guilty" of the crime committed by the direct perpetrator. In both trials, the jury was instructed on the definition of "principal" with CALJIC No. 3.00, 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. [¶] Those who aid and abet a crime and those who directly p[er]petrate the crime are principals and equally guilty of that crime. You need not unanimously agree whether a defendant is an aider and abettor or a direct perpetrator so long as you unanimously agree that he is guilty of that crime under either theory." (Italics added.)
Defendant contends this instruction is legally incorrect and violated his federal constitutional rights because it allowed the jury (in all three murders) to find him guilty as an aider and abettor "without first determining whether [defendant] acted with the requisite mens rea for murder and . . . first degree murder, i.e., murder committed with premeditation and deliberation or by means of lying in wait." (See People v. McCoy (2001) 25 Cal.4th 1111, 1122 (McCoy) ["when a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person's guilt is determined by the combined acts of all the participants as well as that person's own mens rea. If that person's mens rea is more culpable than another's, that person's guilt may be greater even if the other might be deemed the actual perpetrator."]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 (Samaniego) ["an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state"].) This claim avails defendant nothing.
First, defendant forfeited the contention by failing to raise it in the trial court. "Generally, '"[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."' [Citations.]" (Samaniego, supra, 172 Cal.App.4th at p. 1163 ["CALCRIM No. 400 [to the same effect as CALJIC No. 3.00] is generally an accurate statement of the law, though misleading in this case," and defendant "was therefore obligated to request modification or clarification and, having failed to have done so, forfeited this contention"]; accord, People v. Canizalez (2011) 197 Cal.App.4th 832, 849 [CALCRIM No. 400 is "correct in law"; if the defendant "believed that the instruction was inaccurate in the facts presented in [his] case, he was obliged to object to it or to request clarification or modification"].)
Second, as in Samaniego, even if defendant's contention had been preserved for appeal, we would find no prejudicial error.
The legal background for defendant's assertion of error is this. In McCoy, the Supreme Court concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator. (McCoy, supra, 25 Cal.4th at pp. 1117, 1122.) In Samaniego, the court found that McCoy's reasoning led to the inexorable conclusion that the guilt of an aider and abettor could be less than that of the perpetrator if the aider and abettor had a less culpable mental state. (Samaniego, supra, 172 Cal.App.4th at p. 1164.) Accordingly, Samaniego held that CALCRIM No. 400, which at the time stated that a person "is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it," while "generally correct in all but the most exceptional circumstances," was misleading in the defendant's case and should have been modified. (Samaniego, at p. 1165.)
In Samaniego, as here in the Flores murder, the prosecution did not seek to prove which defendant was the direct perpetrator. And in Samaniego, as here, the trial court instructed the jury on both first and second degree murder. So, as the defendant argued in Samaniego, "[i]f the shooter committed premeditated, first degree murder, CALCRIM No. 400 required the jury to convict [the defendants] of first degree murder as aiders and abettors regardless of their mental state, thereby eliminating the need for the jury to make factual determinations regarding [defendants'] intent, willfulness, deliberation and premeditation." (Samaniego, supra, 172 Cal.App.4th at p. 1163.) The court agreed, observing that CALCRIM No. 400 "misdescribes the prosecutor's burden in proving the aider and abettor's guilt of first degree murder" by eliminating the need to prove the mental states for murder (intent, willfulness, premeditation and deliberation). (Samaniego, p. 1165; see also People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero) ["We believe that even in unexceptional circumstances CALJIC No. 3.00 and CALCRIM No. 400 can be misleading."]; but see People v. Canizalez, supra, 197 Cal.App.4th at p. 852 ["the aider and abettor will always be 'equally guilty' with the direct perpetrator of an unintended crime that is the natural and probable consequence of the intended crime"].)
CALCRIM No. 400 has been revised and now states that "[a] person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
In Samaniego, the error was harmless beyond a reasonable doubt, because the jury necessarily found, under other instructions, the mental states for murder. (Samaniego, supra, 172 Cal.App.4th at p. 1165; see also People v. Gonzales (2011) 51 Cal.4th 894, 941, fn. 28.) As we see post, the same is true here, in both cases.
The court reached a different conclusion in Nero, supra, 181 Cal.App.4th 504, finding the court misinstructed the jury with CALJIC No. 3.00 and that the error was not harmless. In Nero, the claim was not forfeited. (Although there was no objection when the instruction was initially given, during deliberations the jury asked if they could find the defendant, as an aider and abettor, guilty of a greater or lesser offense than her codefendant (the direct perpetrator). The court consulted with counsel by telephone, but when the jury asked followup questions, the trial judge, without consulting counsel, again read the instruction indicating that each principal was equally guilty.) (Nero, at pp. 507, 517, fn. 13.) The error was not harmless, as it was "clear that the jury was considering whether to impose a lesser degree or offense on the aider and abettor," and there was a "reasonable possibility that the trial court's response to their questions improperly foreclosed it." (Id. at pp. 519-520.)
a. The Flores murder
In addition to finding defendant guilty of the Flores murder, the jury found true the special allegation that the murder was committed by defendant while defendant was engaged in the commission of the crime of robbery. The jury was instructed that:
1. One who aids and abets another in the commission of a crime is not only guilty of that crime, but of any other crime committed by a principal which is a natural and probable consequence of the first crime.
2. To find defendant guilty of the Flores murder under this theory, the jury had to be satisfied beyond a reasonable doubt that the crime of robbery was committed, the defendant aided and abetted that crime, a coprincipal in the robbery committed the crime of murder, and the murder was a natural and probable consequence of the robbery.
3. If a human being is killed by any one of several persons engaged in the commission or attempted commission of a robbery, "all persons, who either directly and actively commit the act constituting that crime, or who with
knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental."
With respect to the robbery-murder special circumstance, the jury was also instructed: "If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime of Robbery which resulted in the death of a human being, namely Jose Raymundo Flores."
Under these instructions, the jury necessarily found that defendant, whether he was the perpetrator or an aider and abettor, had the mental state required for first degree murder under the felony-murder rule. The jury necessarily found defendant either "directly and actively" committed the robbery, or he knew the perpetrator's unlawful purpose and intended to and did aid in the commission of the robbery; in either case, he would be guilty of murder in the first degree, even if the killing were accidental. Consequently, any error in instructing the jury that "[e]ach principal, regardless of the extent or manner of participation is equally guilty" was necessarily harmless.
b. The San Miguel and Sanchez murders
The jury also necessarily found that defendant had the necessary mental states --intent, willfulness, premeditation and deliberation -- to convict him of the first degree murders of San Miguel and Sanchez, because the jury found defendant guilty of conspiracy to commit those murders. The jury was instructed that:
1. A conspiracy is an agreement between two or more persons "with the specific intent to agree to commit the crime of Murder and with the further specific
intent to commit that crime, followed by an overt act . . . by one or more of the parties for the purpose of accomplishing the object of the agreement."
2. "As to each defendant you must determine whether he was a conspirator by deciding whether he willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy."
3. "Before you may return a guilty verdict as to any defendant . . . you must unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to commit the crime of Murder, and (2) a defendant willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy."
The guilty verdicts on the conspiracy counts thus establish defendant's specific intent to kill San Miguel and Sanchez. "Willful" was defined for the jury to mean "intentional." And, an agreement to commit murder necessarily entails premeditation and deliberation. (Cf. Samaniego, supra, 172 Cal.App.4th at p. 1166 ["[i]t would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required"].)
The jury in Ramirez I also found the multiple-murder allegation to be true, as well as the witness-murder allegation with respect to San Miguel. As to those allegations, the jury was instructed that, if it found a defendant was not the actual killer (or was unable to decide whether the defendant was the actual killer or an aider and abettor or a coconspirator), "you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, or assisted any actor in the commission of the murder in the first degree . . . ." (Italics added.)
In short, any error in instructing that the aider and abettor and the perpetrator were "equally guilty" of the murders of San Miguel and Sanchez was necessarily harmless.
Defendant places considerable reliance on People v. Concha (2009) 47 Cal.4th 653, where the court held that a defendant may be convicted of first degree murder when his accomplice is killed by the intended victim in the course of an attempted murder, "if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder." (Id. at p. 658.) Defendant emphasizes Concha's teaching that "where the defendant did not personally act willfully, deliberately, and with premeditation, the defendant cannot be held liable for first degree murder" (id. at p. 664), and McCoy's teaching that an aider and abettor's mens rea is personal and may be different from that of the direct perpetrator (McCoy, supra, 25 Cal.4th at pp. 1117-1118). Defendant then concludes that the evidence regarding his mens rea was not clear, so that the "equally guilty" instruction was misleading. But as we have seen, defendant's premise is wrong: his specific intent to kill San Miguel and Sanchez was established by the guilty verdicts on the conspiracy counts, and the true verdict on the robbery-murder special circumstance allegation established defendant had the mental state required for first degree murder in the Flores case.
2. The Claim of Insufficient Evidence
Defendant contends his convictions for the murders of Sanchez and San Miguel are not supported by substantial evidence. He is mistaken.
We review a claim of insufficient evidence by determining whether, viewing the whole record in the light most favorable to the prosecution, the record discloses substantial evidence -- evidence which is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
As defendant points out, he was convicted of the San Miguel and Sanchez murders as an aider and abettor or coconspirator, as the evidence showed Arceo and Sergio to be the actual shooters. A person aids and abets the commission of a crime when he, "'"acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime."' [Citation.]" (People v. Jurado (2006) 38 Cal.4th 72, 136.) Whether the defendant aided and abetted a crime is a question of fact. (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)
"A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." (People v. Morante (1999) 20 Cal.4th 403, 416.) Proof may be circumstantial and a conspiracy "'may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134-1135.)
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Defendant contends the evidence against him "amounted to his presence in the garage on the night of the shooting and his efforts after the murders to dispose of the bodies," and that this evidence "does not reasonably inspire confidence in his guilt as either aider and abettor or co-conspirator and is insufficient to constitute proof beyond a reasonable doubt." Both defendant's premise and his conclusion are mistaken.
"'[A]ccording to our Supreme Court, "'[t]o be an abettor the accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission."' [Citations.] "'[T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.'" [Citations.]' [Citation.]" (People v. Booth (1996) 48 Cal.App.4th 1247, 1255, italics omitted.) In short, "one can be guilty as an accomplice (if he shares the goal of the perpetrator) without having actually assisted the commission of the offense, e.g., by 'instigating,' or 'advising' the perpetrator to commit it or by having been 'present for the purpose of its commission.' [Citations.]" (Id. at p. 1256.) Here, there was evidence from which the jury could conclude beyond a reasonable doubt that defendant "share[d] the goal of the perpetrator[s]" and instigated or advised the commission of the crimes, in addition to having been present when they were committed.
First, the evidence showed that the victims were killed because, according to David, they "knew too much"; defendant told Adan that they killed the girls because they were afraid one or both were going to "snitch on them." This could only refer to the Flores murder, which the evidence showed was committed by defendant and Ernesto. (Sanchez was, according to David, present when defendant and Ernesto stripped the car Flores had been driving, and, according to Adan, was in the car with defendant when he drove off after stripping it.) Thus, defendant had ample personal motive for instigating or advising the killings. He also had a motive to protect Ernesto, as they were close friends; they lived together in the Lopez garage for several months.
Second, during the period between the Flores murder and the murders of San Miguel and Sanchez, both defendant and Ernesto restricted Sanchez's freedom of movement. David was asked whether, after the Flores killing, there was anything unusual about the relationship between Sanchez (on the one hand) and defendant and Ernesto. David testified that "[s]he couldn't go nowhere without -- without them [(defendant and Ernesto)] being with her or without their authorization," and "[s]he would go to the alley, you know, they had to be aware of it. She couldn't just go off anywhere by herself." David testified he had seen them run after her, and described an incident in which "[s]he tried to go to the alley, and I think Ernesto ran after her and then asked her where she was going." David said it was not a polite question. It looked to David like "they weren't letting her leave."
Third, as defendant concedes, he was present in the garage on the night San Miguel and Sanchez were murdered. David testified that "[e]veryone that was there" was "acting funny" that night. Defendant, Arceo, Sergio, and Borjas went into the bathroom; after defendant and Sergio walked out of the bathroom, Borjas said, "We're going to tie these bitches up," which David understood to mean "[t]hat they knew too much so they had to get rid of them."
Fourth, after the murders, defendant (along with Sergio or Ernesto or Borjas), loaded the bodies into the trunk of David's car. Defendant then drove away in the car. At some point, defendant returned David's car (which David and others cleaned), and looked at David in a threatening manner and said, "Who's next?" (which David took as meaning that if David didn't "keep [his] mouth quiet," defendant "would probably kill me"). Defendant told David to get rid of the car and burn the evidence; when David refused, defendant told him to change the tires. Defendant was eventually found in Mexico; David testified defendant and Ernesto fled to Guadalajara and tried to get David to go with them.
The evidence just recited, together with the reasonable inferences that may be drawn from that evidence, support the conclusion that defendant knew about and shared Arceo's and Sergio's intent to kill San Miguel and Sanchez, and that, by his acts or advice, affirmatively encouraged and facilitated those murders. We are well aware that presence at the scene, without more, is not enough to establish aiding and abetting, and neither is knowledge of (but failure to prevent) the crime. (Campbell, supra, 25 Cal.App.4th at p. 409.) But presence at the scene is a factor that may be considered, and so are "'companionship, and conduct before and after the offense.'" (Ibid.) These factors are present in ample measure, and there is more; based on the gathering in the garage bathroom followed immediately by Borjas's statement that they were going to "tie these bitches up," jurors could reasonably conclude defendant discussed, encouraged and agreed with Sergio and Arceo to kill the two women. In short, as in Campbell, "the evidence, in our view, reasonably indicates that [defendant] played an affirmative supportive role" in the murders and "was not simply an innocent, passive, and unwitting bystander." (Id. at pp. 409-410.)
A finding of insufficient evidence is appropriate "'only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented. [Citation.]' [Citations.]" (Campbell, supra, 25 Cal.App.4th at p. 408.) We certainly cannot say that here. (See People v. Earp (1999) 20 Cal.4th 826, 887-888 ["[w]here, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, 'but our opinion that the circumstances also might reasonably be reconciled with a contrary finding' does not render the evidence insubstantial"].)
3. The Claim That a Unanimity Instruction Was Required
Defendant contends the evidence in this case (and the overt acts alleged in the information) "suggested two discrete conspiracies," one to commit the crime of murder and another to commit the crime of concealing the murders. Defendant argues the acts alleged in the information attributed to him occurred after the murders, and thus could not have been performed in furtherance of the conspiracy to murder. (See People v. Zamora (1976) 18 Cal.3d 538, 560 [holding in a statute of limitations case that "acts committed by conspirators subsequent to the completion of the crime which is the primary object of a conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy"]; People v. Brown (1991) 226 Cal.App.3d 1361, 1369 ["a conspiracy conviction cannot stand if the only overt act found occurred after commission of the criminal offense which was the conspiracy's object"].) So, defendant theorizes, "[b]ecause the evidence established two discrete crimes," the trial court erred when it instructed the jury (under CALJIC No. 6.22) that it need not unanimously agree on the overt act "so long as each of you finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the information to be overt acts." Defendant's analysis is wrong.
The law on the point is this: A jury verdict in a criminal case must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) The unanimity requirement "'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.]" (Ibid.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Ibid. [holding in a conspiracy case that the jury "need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy" (id. at p. 1128)].)
Here, the information charged one discrete crime -- conspiracy to commit murder. While the evidence may well have suggested a further conspiracy to conceal the murders, the prosecutor's argument to the jury made clear he was contending the evidence proved conspiracy to commit murder. (See Russo, supra, 25 Cal.4th at p. 1132 ["either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act" (italics added)].) The prosecutor argued:
"Now, Ladies and Gentlemen, count 5 and count 6 are actual charges of conspiracy. Same law, you look at it, you have to unanimously agree on what acts in furtherance were done. [¶] In the verdict form it gives you the acts in furtherance, the same ones that are read to you in the information, and it's a separate time crime. Aside from being a theory of liability as to why somebody is guilty of murder, it's its own crime, because you don't have to commit the murder. [¶] If you conspire to do a murder, an act, the deed, it's done. If you actually take the step and do the murder, you do a whole other crime. [¶] Same thing count 6, conspiracy to commit murder."Moreover, defendant's counsel in closing argument argued the prosecution had failed to prove conspiracy to commit murder:
"[Defendant] is charged with conspiracy. Conspiracy. And the prosecution has to prove for you to be guilty of conspiracy to commit murder, the prosecution has to prove that you agreed to murder somebody."After arguing that defendant's presence during the bathroom conclave, just before Sanchez and San Miguel were murdered, proved nothing, counsel argued that, while defendant drove the car with the bodies to Tulare County where they were burned, "[t]hat comes under the category of . . . accessory after the fact. He's not charged with being accessory after the fact." And: "[Defendant] has been involved in the cover up. Again that doesn't make you guilty of the murder, the crime's already completed." And: "[Defendant] did some follow-up work, and they were crimes and he committed crimes. They won't be crimes you'll be taking in the jury room, you're just taking in the five I mentioned, the three murder charges and the two conspiracy charges . . . ."
In addition, the jury instructions identified the charged conspiracies as conspiracies to commit murder, not conspiracies to conceal evidence, as did the verdict forms.
In short, no juror could have been in any doubt as to the nature of the conspiracy with which defendant was charged: conspiracy to commit murder. Nor, as can be seen from our discussion in part 2, ante, was there any lack of evidence sufficient to show defendant's complicity in those murders. Consequently, defendant's claim that the trial court had a sua sponte duty to give a unanimity instruction is entirely without merit.
DISPOSITION
The judgment is affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J.
RUBIN, J.