Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2008012605 of Ventura, Charles W. Campbell, Judge.
Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Peter Rodriguez appeals his conviction, by jury, of the second-degree murder (Pen. Code, §§ 187, subd. (a), 189), of John Orrantia, and of assault with a deadly weapon and by means of force likely to produce great bodily injury on Orlando Orrantia. (§ 245, subd. (a)(1).) It acquitted appellant of street terrorism (§ 186.22, subd. (a)), and found untrue an allegation that the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court sentenced appellant to a term of 15 years to life on the second degree murder conviction and a consecutive determinate term of 4 years on the assault conviction. Appellant contends the judgment is not supported by substantial evidence, that the trial court erred when it failed to instruct the jury on accomplice testimony and that his trial counsel was ineffective because counsel failed to object to certain evidence. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
On the night of January 14, 2006, appellant and Gustavo Tapia attended a large party at a house near the intersection of Anthony Drive and Bristol Road in Ventura. John Orrantia, his brother Orlando, Orlando's wife Kristal, and John's former girlfriend, Megan Walpole, attended the same party. Megan drove John to the party in her black Toyota Camry. The group left at about midnight, as the party was beginning to break up. John was drunk. He walked up to a black Camry parked near the party and opened the passenger door. Megan told him that it was the wrong car. He closed the door and they continued walking down the street toward Megan's car.
Almost immediately after John closed the car door, Megan heard someone yelling, "What the fuck are you doing? Are you trying to steal my car?" Two men appeared, one on either side of John. One of the men was younger, Hispanic and wearing a blue Dodgers sweatshirt. Megan described him as "bouncing around, " like a boxer, from spot to spot. The other man was heavier, had darker skin and was wearing a black jacket. One of them hit John, causing him to fall to the ground. As this was happening, Megan was trying to explain to the men that John had just made a mistake and that she was taking him to her own car. Neither man listened. Megan testified that it felt like a "joint attack, " and that the man in the sweatshirt had distracted her so that the other man could hit John. Orlando ran up and started fighting with the man in the sweatshirt. A third man elbowed Megan and knocked her to the ground. When she got up, the man in the sweatshirt and the man in the black jacket were running down Bristol Road toward a 7-11 store. John and Orlando were both bleeding.
Orlando testified that he was almost to his own car when he noticed both men fighting with John. He pushed the man in the sweatshirt away from John. Orlando traded punches with the man in the sweatshirt. The other man continued fighting with John. Orlando heard John say that he had been stabbed. The fight stopped and the two men ran down the street. Orlando did not see any knives during the fight. He did not realize until later that he had been stabbed, on his right wrist and on both sides of his body.
Jesus Aguilar, another guest, left the party when he heard a commotion. He saw people fighting, heard Orlando say he'd been stabbed, and saw John lying on the ground. When Aguilar asked, Orlando and another friend pointed down the street to show him where the assailants went. He ran after them with a whiskey bottle in his hand. As he ran down the street, Aguilar saw a man jump out from behind a parked car. There was something shiny in the man's hand. Aguilar thought it was a gun and ran back in the other direction. He testified that the man had dark skin and was wearing a dark hooded sweatshirt.
Other guests at the party drove John and Orlando to the hospital. John died later that night. Orlando recovered, but the wound on his wrist required surgery.
Ventura police received an emergency call about the fight at 12:28 a.m. on January 15, 2006. Two minutes later, they were at the scene. A black Toyota Camry was parked nearby. It was registered to the parents of appellant's co-defendant, Gustavo Tapia. Paperwork referring to Tapia was found inside the car, along with an orange t-shirt and some cocaine. Residents of the neighborhood reported seeing two men, matching the party guests' description of the men who fought with John and Orlando, walking around the neighborhood between 12:15 a.m. and 1:30 a.m.
Security camera footage from the 7-11 store showed appellant and Tapia inside the store at about 12:53 a.m. Appellant was wearing a black jacket; Tapia was wearing a blue Dodgers sweatshirt over an orange t-shirt. At about 1:30 a.m., Tapia walked up to a house near the crime scene and asked to use the telephone. He said his car was stuck at the crime scene.
Tapia testified and denied stabbing either victim. He stated that he saw appellant with a knife at the party and that he was surprised later, when he saw appellant hitting John Orrantia. At least three people ran past Tapia and began attacking appellant, who was still fighting with John. Tapia became involved in the fight himself when he tried to pull people off of appellant. The two ran down the street, toward the 7-11, to get away from the fight. At the 7-11, Tapia and appellant argued about whether they should try to retrieve the car. Tapia left appellant at the store. He could not get the car, because it was blocked by the police officers. He called home for a ride, but did not reach anyone. Eventually, Tapia walked home.
Appellant and Tapia were tried together. The jury found appellant guilty of the second degree murder of John Orrantia, and of assault with a deadly weapon on Orlando Orrantia. It acquitted appellant of street terrorism and found not true the sentencing enhancement allegation that appellant committed the offenses for the benefit of a criminal street gang. Tapia was convicted of aggravated assault on Orlando Orrantia but acquitted of murder and street terrorism. The jury found untrue the allegations that he personally used a deadly or dangerous weapon and that he personally inflicted great bodily injury on Orlando.
Discussion
Appellant contends his convictions of murder and assault with a deadly weapon are not supported by substantial evidence because the evidence was insufficient to prove whether he directly perpetrated either crime or aided and abetted Tapia. He further contends the trial court erred in failing to instruct the jury that it must unanimously agree on whether appellant was the direct perpetrator or an aider and abettor of the murder, and in failing to instruct the jury that Tapia was an accomplice as a matter of law whose testimony had to be corroborated and viewed with caution. Finally, appellant contends his trial counsel was ineffective. We are not persuaded.
Sufficiency of the Evidence
In reviewing the sufficiency of the evidence, our only task is to determine whether the record, viewed as a whole and in the light most favorable to the prosecution, discloses substantial evidence such that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) Substantial evidence is "evidence which is reasonable, credible, and of solid value...." (Id.) As a reviewing court, we resolve "neither credibility issues nor evidentiary conflicts. (People v. Maury [(2003) 30 Cal.4th 342, ] at p.403.) Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. (Ibid.) Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Furthermore, we presume in support of the judgment every fact the trier could reasonably deduce from the evidence. (People v. Osband, supra, 13 Cal.4th at p. 690.)
"All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed." (§ 31.) As our Supreme Court explained in People v. McCoy (2001) 25 Cal.4th 1111, this means that a person who "aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (Id. at p. 1117.) The aider and abettor must act with knowledge of the direct perpetrator's criminal purpose and "with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Prettyman (1996) 14 Cal.4th 248, 259.) His or her mental state must be "at least that required of the direct perpetrator. " (People v. McCoy, supra, 25 Cal.4th at p. 1118.) Where the charged offense is murder, "the aider and abettor must know and share the murderous intent of the actual perpetrator." (Id.) Under the "natural and probable consequences doctrine, " the aider and abettor is guilty of both the intended or target offense and " 'any other offense that was a 'natural and probable consequence' of the crime aided and abetted.' " (Id. at p. 1117.)
The doctrine of aiding and abetting recognizes that, when two people agree to 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." (Id. at p. 1120.) Each participant in the crime is responsible for his or her own conduct and mental state, and also for adopting, as his or her own, the acts and mental state of the other participant. (People v. Prettyman, supra, 14 Cal.4th at p. 259.) "The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (People v. McCoy, supra, 25 Cal.4th at p. 1120 .)
Substantial Evidence of Second Degree Murder
Appellant contends his conviction of the second degree murder of John Orrantia is not supported by substantial evidence because the evidence does not establish whether he was the direct perpetrator or an aider and abettor. We are not persuaded. First, as McCoy holds, the doctrine of aiding and abetting "obviates the necessity to decide" whether appellant actually stabbed John or aided and abetted Tapia in that offense. (People v. McCoy, supra, 25 Cal.4th at p. 1120 .) Second, the evidence was sufficient to permit a reasonable trier of fact to find that the co-defendants acted together to attack the murder victim. For example, Megan Walpole described the assault on John as a "joint attack, " in which a man wearing a blue sweatshirt (Tapia) distracted her while another man, wearing a dark jacket (appellant) struck John. Both men were yelling about John trying to steal the car and Walpole thought both were hitting John. Orlando testified that he heard two men yelling about the car and then saw both of them run toward John and attack him. Other witnesses testified that the two men fled the scene together. Videotape from the 7-11 store's security camera established that the two men were together at the convenience store after the attack. In the videotape, appellant is wearing a dark jacket while Tapia is wearing a blue sweatshirt. This constitutes substantial evidence on which a reasonable trier of fact could rely to find appellant guilty of second degree murder, either as a direct perpetrator or on an aiding and abetting theory.
Substantial Evidence of Assault
For the same reasons, substantial evidence supports appellant's conviction of the aggravated assault on Orlando Orrantia. The testimony of Walpole, Orlando Orrantia, and other party guests who saw the fight would allow a reasonable trier of fact to find that appellant aided and abetted Tapia's assault on Orlando. Appellant fought with John, preventing both John and the other party guests from coming to Orlando's assistance.
Appellant contends his conviction on an aiding and abetting theory is inconsistent with the jury's findings on sentence enhancements alleged against his co-defendant Tapia. The jury found "not true" the sentence enhancement allegations that Tapia personally used a deadly weapon and personally inflicted great bodily injury on Orlando Orrantia. But these findings have no bearing on whether the verdict against appellant is supported by substantial evidence. First, there is no requirement that verdicts against Tapia be consistent with those against appellant. "If substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant." (People v. Palmer (2001) 24 Cal.4th 856, 858; see also People v. Lewis (2001) 25 Cal.4th 610, 656.)
Second, the "not true" finding on the enhancement allegation that Tapia personally used a weapon is not the same as a finding that Tapia was guilty of assault on an aiding and abetting theory. As our Supreme Court held in People v. Santamaria (1994) 8 Cal.4th 903, if each juror is convinced of the defendant's guilt beyond a reasonable doubt, the jury need not "decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator." (Id. at p. 918.) Where the jury is uncertain as to the exact role a defendant played in a crime, it may properly find a personal weapons use allegation untrue, and still convict the defendant of the substantive offense. The "not true" finding on the enhancement allegation "shows only that there was a reasonable doubt in the minds of the jurors that defendant specifically used a knife. It does not show the reverse, that the jury specifically found defendant was an aider and abettor." (Id. at p. 919, emphasis deleted.)
Here, for example, the jury may have disagreed about whether Tapia directly perpetrated the assault or aided and abetted it, but agreed that he did one or the other. Under this scenario, the jury would have found "not true" the personal weapons use enhancement allegation, but convicted Tapia of the crime itself. This "split verdict" would also be consistent with the finding that appellant was guilty of assault. (Id. See also People v. Nunez (1986) 183 Cal.App.3d 214, 225-226 [jury finding that personal weapons use allegation was not true "does not necessarily mean that the accused was not a direct perpetrator of the crime."].) Regardless of the jury's findings concerning co-defendant Tapia, the evidence outlined above is substantial evidence supporting appellant's conviction of aggravated assault on an aiding and abetting theory.
Unanimity Instruction
Appellant contends the trial court erred when it instructed the jury, "You need not unanimously agree, nor individually determine whether the defendant is an aider and abettor or a direct perpetrator. The individual jurors themselves need not choose among the theories, so long as each is convinced beyond a reasonable doubt." There was no error. The instruction was responsive to the evidence and is a correct statement of the law. (People v. Jenkins (2000) 22 Cal.4th 900, 1024-1025; People v. Santamaria, supra, 8 Cal.4th at pp. 918-919.)
Instruction on Accomplice Testimony
Appellant contends the trial court erred when it failed to instruct the jury that Tapia was an accomplice whose testimony must be corroborated and viewed with caution. The trial court had, however, no sua sponte duty to so instruct the jury. "[G]enerally, instructions on accomplice testimony must be given on the court's own motion only when the accomplice witness is called by the prosecution or when a defendant, in testifying, implicates his codefendant while confessing his own guilt. But 'where a defendant testifies in his own behalf and denies guilt while incriminating a codefendant, it is at most for the discretion of the trial judge whether to give accomplice testimony instructions on his own motion.' " (People v. Avila (2006) 38 Cal.4th 491, 562, quoting People v. Terry (1970) 2 Cal.3d 362, 399.)
People v. Guiuan (1998) 18 Cal.4th 558, and People v. Box (2000) 23 Cal.4th 1153, are not to the contrary. In Guiuan, the accomplice was not a co-defendant. In Box, the court concluded there was "no persuasive reason not to require" an instruction on accomplice testimony, "when requested by a defendant in a case where a codefendant testifies." (People v. Box, supra, 23 Cal.4th at p. 1209.) It did not hold that the trial court has a sua sponte duty to provide the instruction where, as here, the defendant fails to request it. As the court noted in People v. Smith (2005) 135 Cal.App.4th 914, these cases "have not disturbed the longstanding rule that an accomplice instruction need not be given sua sponte when the testifying accomplice is a codefendant." (Id. at p. 928.)
Ineffective Assistance of Counsel
Appellant contends he received ineffective assistance of counsel at trial because his counsel did not object to hearsay evidence that, in 1996, appellant participated in a fight in which someone was stabbed. One witness, Richard Montoya, testified that he saw appellant participate in a large fight and that someone was stabbed during the fight. Montoya admitted on cross-examination that, although he saw appellant fighting, he did not see appellant stab anyone. It was after the fight that someone else told Montoya that appellant had done the stabbing. Appellant's counsel did not object to any of this testimony. Another witness, the prosecution's gang expert, testified that appellant was arrested but later found not guilty of the stabbing.
To prevail on a claim of ineffective assistance of counsel, appellant must establish both that trial counsel's performance was deficient and that there is a reasonable probability appellant would have achieved a more favorable result but for counsel's incompetence. (Strickland v. Washington (1984) 466 U.S. 668, 690; People v. Holt (1997) 15 Cal.4th 619, 703.) In reviewing counsel's performance, we presume that counsel exercised reasonable professional judgment in making tactical decisions and we give deference to those decisions. (People v. Holt, supra, 15 Cal.4th at p. 703.) For example, the decision whether to object is one to which we defer because it "depends upon counsel's evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony." (People v. Catlin (2001) 26 Cal.4th 81, 165.) Ineffective assistance of counsel is rarely established based solely on counsel's failure to object. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Appellant has not persuaded us that his counsel was ineffective by not objecting on hearsay grounds to Montoya's testimony. First, Montoya did not testify that appellant committed a stabbing; he testified that appellant was one of several people involved in a fight during which someone was stabbed. On cross-examination, Montoya testified that appellant was "charged" in relation to the incident. He also admitted that, after the fight, he was "told by somebody that it was [appellant] who did the stabbing[, ]" and that he "never actually saw [appellant] stab somebody[.]" Appellant's counsel objected that Montoya lacked foundation for his opinion that the fight was gang related and that his testimony was irrelevant. These objections were overruled. Counsel could reasonably have concluded that further objection would be futile and would only serve to highlight Montoya's already discredited testimony.
Nor are we persuaded that appellant was prejudiced by counsel's action. First, the testimony was not particularly persuasive, given Montoya's admission that he never saw appellant stab anyone. Second, the jury later learned that appellant was found not guilty of criminal charges stemming from the stabbing. There is little probability that Montoya's testimony was central to the jury's verdict. Similarly, we cannot conclude that the trial court relied on this evidence in sentencing appellant. The trial court did not refer to it in imposing sentence, the probation report on which the trial court relied noted that charges filed against appellant in connection with the stabbing had been dismissed, and appellant had an extensive record of violent crime apart from the stabbing incident. There is no reason to conclude appellant would have received a more favorable verdict or sentence had counsel objected to Montoya's testimony.
Conclusion
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.