Opinion
D050438
1-2-2008
THE PEOPLE, Plaintiff and Respondent, v. FRANK SANCHEZ III et al., Defendants and Appellants.
NOT TO BE PUBLISHED
I.
INTRODUCTION
A jury found Frank Sanchez III guilty of murder (Pen. Code, § 187) (count 1), and two batteries (§ 242) (counts 2, 3). With respect to count 1, the jury found true firearm sentence enhancement allegations pursuant to section 12022.53, subdivisions (d), (e) and a section 186.22, subdivision (b) gang sentence enhancement allegation. The jury also found codefendant Javier Ricardo Betancourt guilty of murder (§ 187) (count 1), and two batteries (§ 242) (counts 2, 3). With respect to count 1, as to Betancourt, the jury found true a section 12022.53, subdivision (e) firearm sentence enhancement allegation and a section 186.22, subdivision (b) gang sentence enhancement allegation.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The trial court sentenced Sanchez to a total term of 50 years to life, comprised of a term of 25 years to life on count 1 and an additional consecutive term of 25 years to life on the section 12055.53, subdivision (d) enhancement. The trial court sentenced Betancourt to a total term of 50 years to life, comprised of a term of 25 years to life on count 1 and an additional consecutive term of 25 years to life on the section 12055.53, subdivision (e) enhancement. With respect to both defendants, on count 1, the trial court imposed and stayed sentences on the remaining enhancements and, with respect to counts 2 and 3, the court imposed sentences of 180 days each, to be served concurrently with each other and also with the term imposed on count 1.
The defendants raise numerous contentions on appeal. We find no reversible error. The People concede that the trial court erred in imposing and staying sentence enhancements pursuant to section 186.22, subdivision (b) on count 1 in light of the defendants life sentences. We agree and order the section 186.22, subdivision (b) sentence enhancements stricken. We affirm the judgment as so modified.
II.
FACTUAL BACKGROUND
A. Introduction
The murder at issue in this case occurred while Sanchez and Betancourt were committing a battery on Joseph Flores (Joseph). Josephs father, Albert Flores (Albert), ran toward the men as they were fighting, while shouting a profanity at Sanchez and Betancourt. Sanchez shot and killed Albert. Sanchez was prosecuted as the perpetrator of Alberts murder, and Betancourt was prosecuted pursuant to the natural and probable consequences doctrine.
B. Events prior to the crimes
Approximately a week and a half before the murder, Betancourt asked Annjeanette Durocher to help him find Francisco Villarino because Villarino owed Betancourt a debt. Durocher, who had a child with Villarino, was living at Betancourts aunts house. Durocher agreed to help Betancourt, but was unable to find Villarino that day.
The following day, Durocher, accompanied by Betancourt, located Villarino at a house in San Jacinto. Betancourt and Villarino spoke to each other amicably. A few days later, Durocher and Betancourt discovered Villarino at an apartment at which Armando Moreno and April Flores (April) were living. Aprils brother, Joseph, was also at the apartment. Betancourt spoke with Joseph. According to Durocher, the two appeared to get along fine. Betancourt and Villarino left the house together without Durocher for approximately an hour. Betancourt and Villarino also appeared to be getting along with each other.
C. The crimes
On October 16, 2002, the night of the murder, at approximately 10:00 p.m., Betancourt telephoned Durocher at her parents house and asked her if he could see her. A short time later, Betancourt arrived at Durochers parents residence in a red truck. Sanchez was in the passenger seat of the truck. Anxiously and with a sense of urgency, Betancourt asked Durocher to help him find Villarino. Durocher agreed to do so.
Betancourt, Durocher, and Sanchez went to Moreno and Aprils residence. Betancourt told Durocher to stay inside the apartment with April and to ensure that April did not call the police. Durocher went inside the apartment with April. Durocher heard the defendants ask Moreno where Villarino was, in an "extremely aggressive" manner. Moreno told the defendants that he did not know. Durocher heard Sanchez tell Betancourt to "[s]mash on him," and then heard Betancourt and Sanchez beating Moreno. During the beating, Betancourt and Sanchez both said the name of their gang, North Side Colton. Durocher asked April if she knew where Villarino was. April told Durocher to check "the white peoples house," which Durocher understood to refer to the house of Tammy Hand and her husband, Steven Hand. The Hands lived next door to Aprils father, Albert.
Betancourt drove Sanchez and Durocher to the Hands house and parked across the street from the residence. Durocher got out of the truck, and Betancourt and Sanchez remained near the truck. As Durocher walked toward the Hands house, she saw a white car parked in front of the house. Alberts niece, Alicia Villalobos, was standing next to the car. Durocher saw Villarino in the passenger seat of the car and Steven Ybanez in the drivers seat. Durocher was aware that Villalobos had previously made various negative comments about her. Durocher began to physically attack Villalobos as Villalobos stood near or next to the white car. When the fight began, Ybanez drove away from the scene with Villarino.
Joseph approached Durocher and Villalobos as they were fighting. Joseph attempted to break up the fight by telling Durocher to "kick back," and pushing her away from Villalobos. After Joseph pushed Durocher, Betancourt and Sanchez approached Joseph. Betancourt tapped Joseph on his shoulder. Betancourt asked Joseph, "What are you doing putting your hands on [a] [g]ina [girl]?" Joseph responded to Betancourt in a conciliatory manner, "Im not even tripping on you." Betancourt and Sanchez started hitting Joseph, and Durocher and Villalobos continued fighting.
Durocher testified that she had known Joseph and April nearly her entire life and that she was friendly with both of them.
Durochers testimony is ambiguous as to the exact sequence in which these statements were made.
In the meantime, Albert and his niece Crystal Ruffino (Crystal), who were inside Alberts house next door, could hear the commotion outside. Albert rushed outside, holding his keys in his hands. The keys were attached to a long strap of material. Durocher saw Albert run toward Joseph and the defendants as they were fighting. Albert was holding something white in his hands. As he approached the three men, Albert said to Betancourt and Sanchez, "Oh, you little mother fuckers." Shortly thereafter, Durocher heard two gunshots.
After Durocher heard the gunshots, she ran to the red truck. When she stopped for a moment in the street, she saw Sanchez pointing a handgun at Josephs face. Sanchez was within an arms reach of Joseph. Durocher screamed at Betancourt, "Ricky, no. Tell him not to do it." Durocher continued to run away. She heard no more gunshots.
Shortly thereafter, Sanchez pushed Durocher into the truck, and Betancourt drove the three of them away from the scene. As they drove away, Durocher saw Albert lying in the street. Joseph was by Alberts side screaming for someone to call 911.
From inside Alberts house, Crystal heard Joseph screaming, "Crystal, hurry up. Crystal get out here. They shot my dad." Crystal went outside. She saw Alberts keys in the street next to him, and placed them on his chest. Crystal also saw a bag of marijuana on the street outside of the Hands house. She placed the bag in the back of a nearby truck. Joseph told Crystal, "They just shot my dad. I cant be here right now."
Steven Hand (Steven), who had been lying in bed, heard the two gunshots. Seconds later, Joseph opened the door to Stevens house and yelled, "They killed my dad." Steven called 911 and Joseph went back outside. Joseph was crying and screaming, "He killed my dad." Joseph paced back and forth and then ran away from the scene. Steven and Tammy Hand remained with Albert until the police arrived. They did not see any keys on or near Albert.
Albert died from a gunshot wound to the chest.
D. The Flight
Betancourt drove Durocher and Sanchez to a convenience store. Sanchez went into the store to purchase beer. While Sanchez was in the store, Durocher asked Betancourt, "Why didnt you tell me there was a gun?" Betancourt responded, "You should have known."
Later that evening, while Durocher, Sanchez, and Betancourt were still in the truck, Sanchez said, referring to Albert, "That fools going to die . . . I served that fool." Regarding Joseph, Sanchez said, "Somebody was praying for that fool." At some point that evening, Betancourt told Durocher that Sanchez had said that Albert had "cold-cocked" him.
E. Gang evidence
The People presented expert testimony regarding gangs and the behavior of gang members. Fontana Police Officer Ronald Vogelsang testified that when gang members travel outside their own territory, the risk that they will become involved in violence increases. This increased risk is one of the reasons gang members frequently arm themselves in such situations. Officer Vogelsang testified that gang members gain the respect of their fellow gang members by fighting with members of other gangs and by committing crimes for the gang.
According to Vogelsang, gang members expect their fellow gang members to provide "back up" during a fight. Gang members often commit crimes with other gang members in order to intimidate potential witnesses from testifying against gang members. Officer Vogelsang also testified that Sanchez and Betancourt were members of the North Side Colton gang, which Vogelsang described as a "very violent gang."
Officer Vogelsang testified that in his opinion, the murder in this case was committed for the benefit of the North Side Colton gang. Vogelsang stated that he believed Joseph was in "a gang other than North Side Colton." Vogelsang explained that the reasons he believed the defendants committed the crime for the benefit of the gang were that witnesses to the events that night would have understood that Betancourt and Sanchez were from the North Side Colton gang, Betancourt knew that Sanchez was armed, Betancourt and Sanchez were involved in more than one violent incident that evening, and Betancourt was driving while Sanchez had a gun. Officer Vogelsang testified that this evidence supported his opinion that the two defendants were acting together to collect a debt at the time of the murder.
F. The defense
The defense presented evidence that Albert was under the influence of methamphetamine at the time of the murder, and that methamphetamine can cause violent behavior.
III.
DISCUSSION
A. Claims raised by both defendants
In addition to Sanchez and Betancourt raising the claims addressed in this section, both defendants have joined in each others claims to the extent that they would benefit thereby. We afford such review whenever applicable.
1. There is sufficient evidence to support the jurys verdict that the murder of Albert was premeditated and deliberate
Sanchez and Betancourt claim there is insufficient evidence to support the jurys verdict that the murder was premeditated and deliberate.
a. Standard of review
In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Evidence of premeditation need not be overwhelming and "`we need not be convinced beyond a reasonable doubt that defendant premeditated the murder[ ]. The relevant inquiry on appeal is whether "`any rational trier of fact" could have been so persuaded. [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 546.)
b. Governing law
Section 189 provides in relevant part, "All murder which is perpetrated by means of . . . willful, deliberate, and premeditated killing . . . is murder of the first degree."
"In this context, `premeditated means `considered beforehand, and `deliberate means `formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767 (Mayfield).) However, "[t]he process of premeditation and deliberation does not require any extended period of time. `The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.]" (Ibid.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the California Supreme Court "`identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, . . . "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate courts assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]" [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.)
c. There is sufficient evidence of premeditation and deliberation
The following evidence, described in part II, ante, concerning the circumstances of the murder is relevant to our consideration of the sufficiency of the evidence of premeditation and deliberation. Having armed himself with a gun, Sanchez traveled outside his gangs territory with a fellow gang member, Betancourt, in order to collect a debt that Villarino owed to Betancourt. Sanchez and Betancourt, along with Durocher, went to an apartment where Betancourt had previously found Villarino, and at which Moreno and April were living. While at the apartment, Sanchez and Betancourt demanded that Moreno tell them where Villarino was. When Moreno stated that he did not know, Sanchez and Betancourt began to assault Moreno. While Sanchez and Betancourt were hitting Moreno, the pair stated the name of their gang, North Side Colton. After learning that Villarino might be at a house next door to Alberts, Sanchez and Betancourt traveled to this location, where they assaulted Alberts son Joseph. When Albert attempted to intervene in the fight, Sanchez fired two shots at Albert, one of which struck and killed him.
Later that evening, after Sanchez shot Albert, Sanchez told Durocher and Betancourt, "That fools going to die . . . I served that fool." In addition, Betancourt told Durocher that she should have known that there was a gun.
The jury could have reasonably inferred from the evidence presented that Joseph was in a gang other than North Side Colton and that both Joseph and Durocher, who were present at the scene of the killing, knew that Sanchez and Betancourt were members of the North Side Colton gang.
Applying Anderson to this evidence, Sanchezs act of arming himself in anticipation of a violent confrontation while assisting in the collection of a debt owed to a fellow gang member constitutes strong evidence of planning. (See People v. Manriquez (2005) 37 Cal.4th at 547, 578 (Manriquez).) With respect to motive, the jury could have reasonably inferred from the circumstances of the killing and from Officer Vogelsangs testimony, that Sanchezs motive was to demonstrate his willingness to use violence to further the gangs interests. (See People v. Martinez (2003) 113 Cal.App.4th 400, 412-413 [finding sufficient evidence of premeditation and deliberation where the motive for the shooting involved gang rivalry].) Finally, the manner of killing — the firing of two shots at the victim at close range with a handgun — is indicative of a deliberate intent to kill. (See People v. Poindexter (2006) 144 Cal.App.4th 572, 588 ["The manner of killing, while not an execution-style single shot to the head, could still support a finding of premeditation and deliberation, as defendant quickly fired three shots at the victim, with a shotgun, from a relatively close range"].) Sanchezs statement after the shooting, "That fool is going to die . . . I served that fool," also supports the conclusion that the shooting was the result of a calculated judgment rather than a rash impulse. (See Mayfield, supra, 14 Cal.4th at p. 768 ["postoffense statements [can] provide substantial insight into the defendants thought processes in the crucial moments before the act of killing].)
While there was no direct evidence regarding the precise distance Sanchez was from Albert when he fired the gun, the jury could have inferred from Durochers testimony that the shooting occurred at relatively close range.
We conclude that there is sufficient evidence to support a verdict of premeditated and deliberate first degree murder.
2. There is sufficient evidence to support the gang-related enhancement findings under section 186.22 subdivision (b) and section 12022.53 subdivision (e)
Both Sanchez and Betancourt claim that there is insufficient evidence to support the jurys gang enhancement finding under section 186.22, subdivision (b). Betancourt also claims that there is insufficient evidence to support the section 12022.53, subdivision (e) gang-related firearm enhancement.
a. Standard of review
The law regarding appellate review of claims challenging the sufficiency of the evidence in the context of gang enhancement findings is the same as that governing review of sufficiency claims generally. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) Accordingly, we apply the standard of review discussed in part III.A.1.a., ante.
b. Governing law
Section 186.22, subdivision (b)(1) provides in relevant part:
"[A]ny person who 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . ."
Aiders and abettors who commit crimes while violating section 186.22, subdivision (b) are subject to a sentence enhancement for vicarious liability for use of a gun, pursuant to section 12022.53, subdivision (e).
In People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales), the defendant and two fellow gang members committed a robbery. On appeal, the defendant claimed that there was insufficient evidence to support a gang sentence enhancement pursuant to section 186.22, subdivision (b)(1), arguing that the evidence showed only that the three men belonged to the same gang. The Morales court rejected this claim, concluding that evidence that a gang member has committed a crime with another person whom he knows to be a fellow gang member will ordinarily be sufficient to meet the disjunctively worded elements of section 186.22, subdivision (b)(1). The court explained, "Defendant argues that reliance on evidence that one gang member committed a crime in association with other gang members is `circular . . . . Not so. Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang." (Morales, supra, 112 Cal.App.4th at p. 1198.)
In People v. Romero (2006) 140 Cal.App.4th 15, 19-20 (Romero), the court employed similar reasoning in holding that there was sufficient evidence to support a gang enhancement pursuant to section 186.22, subdivision (b)(1) where the defendant drove his fellow gang members to the site where they committed a drive-by shooting. The court reasoned: "There was ample evidence that appellant intended to commit a crime, that he intended to help Moreno commit a crime, and that he knew Moreno was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further Morenos criminal conduct." (Romero, supra, 140 Cal.App.4th at pp. 19-20.)
c. The People presented sufficient evidence to support the jurys gang enhancement findings
As an initial matter, we reject Sanchezs argument that there was "no evidence Sanchez was an active gang member." The People presented evidence that in 1992, Sanchez admitted that he was a gang member. In August 2002, just months before the murder in this case, Sanchez listed several incarcerated gang members as his associates while registering with police pursuant to a court order. The jury could also have considered evidence that on the night of the murder, Sanchez acted in concert with Betancourt, who admitted his gang affiliation as recently as March 2002. Further, the jury could have considered evidence that Betancourt and Sanchez each said the name of their gang as they assaulted Moreno on the night of the murder. In addition, when Sanchez was arrested just days after the murder, he was in the company of another North Side Colton gang member. There was thus ample evidence from which the jury could conclude that Sanchez was an active gang member at the time of the murder.
From this evidence, the jury could also have reasonably inferred that Sanchez knew that Betancourt was a member of his gang.
The People presented evidence that Sanchez murdered Albert while committing a battery with Betancourt, a fellow gang member. Assuming that it is theoretically possible for a gang member to commit an offense with another gang member and yet not be acting "in association with any criminal street gang," within the meaning of the section 186.22, subdivision (b)(1) (see Morales, supra, 112 Cal.App.4th at p. 1198), in this case, there was sufficient evidence that on the night Albert was killed, Sanchez and Betancourt were acting in association with a criminal street gang. The murder occurred only minutes after Sanchez and Betancourt committed a battery on Moreno, during which they stated the name of their gang, and while the men were jointly committing another battery on Joseph.
The jury could also have reasonably inferred from the expert testimony and the circumstances of the killing that, in murdering Albert, Sanchez specifically intended to use violence to further the gangs interests. (Compare with In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [finding insufficient evidence to support section 186.22, subdivision (b)(1) gang enhancement where "[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use [a] knife in a gang-related offense"].)
We reject Sanchezs argument in his reply brief that People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran ), supports the conclusion that there is insufficient evidence to support the gang enhancements in this case. The court in Albarran did not consider where there was sufficient evidence to support gang enhancement allegations, but rather, whether gang evidence was admissible with respect to the underlying offenses at issue in that case. (Id. at pp. 222-223.) Albarran is also wholly distinguishable from this case on its facts. In this case, unlike in Albarran, there was evidence that both of the participants in the underlying offenses were gang members. (Id. at p. 223, fn. 6.)
In light of Betancourts liability for Alberts murder under the natural and probable consequences doctrine (see part III.C.3., post), it appears that the elements of section 186.22, subdivision (b) were established as to Betancourt as long as Sanchez had the requisite intent in murdering Albert. In other words, under the circumstances of this case, it does not appear that section 186.22, subdivision (b)(1) required that Betancourt have acted with a gang-related intent. (["[A]ny person who 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, shall, upon conviction of that felony. . . ."]) However, assuming that Betancourt is required to have harbored such intent, there was sufficient evidence that Betancourt had the specific intent to assist in criminal conduct by a gang member, in view of the circumstances of the killing and his participation in the battery on Joseph. Accordingly, there was sufficient evidence from which the jury could have determined that both defendants harbored the "specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).)
We reject Sanchezs argument that there is insufficient evidence to support the gang enhancement because, in shooting Albert, Sanchez was "trying to prevent the attack on him by Albert." The jury clearly rejected this argument when it convicted Sanchez of first degree murder. There was sufficient evidence from which the jury could have made this determination. This court will not second guess the jurys factual determinations on appeal. (People v. Baker (2005) 126 Cal.App.4th 463, 469 [stating that in considering sufficiency claim, "[w]e do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact"].)
Finally, we reject defendants argument that there is insufficient evidence to support the gang-related sentence enhancements because section 186.22, subdivision (b)(1) purportedly requires proof of a specific intent to facilitate a crime other than the charged offense. (See Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1104.) We agree with the courts in People v. Hill (2006) 142 Cal.App.4th 770, 774 and Romero, supra, 140 Cal.App.4th at page 19, both of which rejected this interpretation of section 186.22, subdivision (b)(1) as an unreasonable interpretation of the statute. (See Romero, supra, 140 Cal.App.4th at p. 19 ["By its plain language, the statute requires a showing of specific intent to promote, further, or assist in `any criminal conduct by gang members, rather than other criminal conduct"].)
Accordingly, we conclude that there was sufficient evidence to support the gang-related sentence enhancements.
3. The trial court committed harmless error by admitting evidence of Sanchezs and Betancourts prior juvenile adjudications
Sanchez and Betancourt claim that the trial court erred in allowing the People to admit evidence of their juvenile adjudications as predicate offenses in proving the existence of a criminal street gang, for purposes of the section 186.22, subdivision (b)(1) enhancements. The defendants claim that because the prosecutor was permitted to introduce ample evidence of other crimes committed by North Side Colton gang members to establish the predicate offenses, the probative value of the defendants juvenile adjudications was minimal. The defendants argue pursuant to Evidence Code section 352, that the court should not have admitted evidence of their prior juvenile adjudications because the minimal probative value of the evidence was substantially outweighed by the probability of prejudice inherent in the introduction of uncharged offense evidence. Sanchez argues that his conviction for first degree murder must be reversed as a result of the error. Betancourt seeks reversal of all of his convictions and true findings.
We apply the abuse of discretion standard of review to this claim. (See People v. Kipp (2001) 26 Cal.4th 1100, 1121 [applying abuse of discretion standard of review to defendants claim that the trial court erred in failing to exclude evidence pursuant to Evidence Code section 352].) We conclude that the trial court erred in admitting in evidence of the defendants prior juvenile adjudications, but that the error was harmless.
a. Factual and procedural background
During a pretrial hearing, Sanchezs counsel stated that the prosecutor had provided the defense with a list of eight prior convictions that the prosecutor intended to use as predicate offenses to prove that North Side Colton was a criminal street gang, pursuant to section 186.22, subdivision (b)(1). Sanchezs counsel requested that the court exclude evidence of Sanchezs prior juvenile adjudication pursuant to Evidence Code section 352 on the ground that, in light of the numerous other predicate offenses available to the prosecutor, the probative value of the Sanchezs priors was minimal while the potential for prejudice from its admission was great. Betancourts counsel joined in the motion, noting that the prosecutor had indicated that he intended to offer in evidence Betancourts 1996 juvenile adjudication for second degree burglary.
The prosecutor argued that the defendants prior juvenile adjudications revealed that the defendants were "involved in criminality as well as being members of a gang." The court indicated that it would take the matter under submission. Prior to the commencement of the trial, the court ruled that it would allow the prosecution to present evidence of the defendants juvenile priors.
At trial, the People presented evidence pertaining to the prior convictions of six other North Side Colton gang members for various crimes. The People also presented evidence that in 1995 Sanchez suffered a juvenile adjudication for first-degree burglary (§ 459) and assault with a deadly weapon (§ 245, subd. (a)(1)) stemming from offenses committed on October 8, 1994. In addition, the People offered evidence that Betancourt suffered a 1999 juvenile adjudication for second-degree burglary (§ 459) stemming from offenses committed on August 11, 1996. Both Sanchez and Betancourt renewed their objections to this evidence. The court overruled the objections.
During jury instructions, the court instructed the jury regarding the limited purpose for which it could consider evidence of the defendants prior juvenile adjudications, pursuant to a modified version of CALJIC No. 17.24.3, as follows:
"Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendants are on trial.
"This evidence, if believed, may not be considered by you to prove a defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.
"For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose."
b. Governing law
i. The purpose for which the uncharged offense evidence was offered
In order to subject the defendants to gang-related sentence enhancements, the People were required to prove that the defendants committed the crimes "for the benefit of, at the direction of, or in association with any criminal street gang . . . ." (§ 186.22, subd. (b)(1), italics added.) A "criminal street gang" is statutorily defined as an organization whose "members . . . have engaged in a pattern of criminal gang activity."
Section 186.22, provides in relevant part: "(e) As used in this chapter, `pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶] [providing a list of enumerated crimes] [¶] (f) As used in this chapter, `criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
ii. The law governing the admissibility of uncharged offense evidence
Evidence Code section 1101 provides:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Evidence code section 352 provides:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
It is well established that uncharged offense evidence that is admissible pursuant to Evidence Code section 1101, "`must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.] [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), superseded by statute on other grounds, as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505.)
The Supreme Court has repeatedly stressed that "evidence of uncharged misconduct `"is so prejudicial that its admission requires extremely careful analysis."" (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting Ewoldt, supra, 7 Cal.4th at p. 404; e.g., People v. Medina (1995) 11 Cal.4th 694, 748.) Since "`substantial prejudicial effect [is] inherent in [such] evidence, uncharged offenses are admissible only if they have substantial probative value. If there is any doubt, the evidence should be excluded. [Citation.]" (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. omitted, overruled on another ground by People v. Rowland (1992) 4 Cal.4th 238, 260; see also People v. Haston (1968) 69 Cal.2d 233, 244 [other crimes evidence "should be received with `extreme caution, and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused"].)
In Ewoldt, the Supreme Court emphasized that where uncharged offense evidence is cumulative, it will often be inadmissible pursuant to Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at pp. 405-406 ["In many cases the prejudicial effect of such evidence [offered to show a common design or plan] would outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute"].)
c. The trial court erred in admitting evidence of the defendants prior juvenile adjudications
The People note that the evidence of the defendants priors was relevant to establish the predicate offenses necessary to establish the section 186.22, subdivision (b) enhancement. However, the prosecutor presented ample evidence, apart from the defendants juvenile adjudications, to establish that North Side Colton was a criminal gang. The People offer no response to the defendants argument that the evidence was inadmissible pursuant to Evidence Code section 352. Specifically, the People do not contend that the evidence of numerous convictions of other North Side Colton gang members was in any way insufficient to establish the necessary predicate offenses.
The evidence of the defendants prior juvenile adjudications was "merely cumulative regarding an issue that was not reasonably subject to dispute." (Ewoldt, supra, 7 Cal.4th at p. 406.) As with all uncharged offenses, the possibility for prejudice in allowing the jury to hear of the defendants commission of prior offenses was significant. For these reasons, we conclude that the trial court abused its discretion in admitting evidence of the juvenile adjudications.
d. The error was harmless as to both defendants
Sanchez and Betancourt claim that the admission of the uncharged offense evidence violated their federal constitutional right to due process, and that the standard of prejudice adopted in Chapman v. California (1967) 386 U.S. 18, 24, thus applies. In Albarran, supra, 149 Cal.App.4th at pages 229-230, the court explained the standard that a reviewing court must apply in determining whether the erroneous admission of evidence implicated a defendants right to due process:
"To prove a deprivation of federal due process rights, Albarran must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. `Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose. [Citation.] `The dispositive issue is whether the trial court committed an error which rendered the trial "so `arbitrary and fundamentally unfair that it violated federal due process." [Citations.] [Citation.]"
In this case, one cannot clearly infer that the jury used the evidence of the defendants prior juvenile adjudications for an improper purpose, because the uncharged offense evidence was relevant — albeit cumulative — to the issue of the predicate gang offenses. Further, the prosecutor mentioned the evidence only briefly, and it did not constitute a significant part of the prosecutions case in chief against either defendant. The admission of the evidence thus clearly did not render the trial so arbitrary and fundamentally unfair as to violate the defendants right to due process.
Ordinarily, the improper admission of uncharged offense evidence is reviewed under the standard of prejudice established in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.) Having concluded that admission of the uncharged offense evidence did not violate the defendants federal constitutional right to due process, we must determine whether it is "reasonably probable that a result more favorable to [the defendants] would have been reached in the absence of the error. . . ." (Watson, supra, 46 Cal.2d at p. 837; see Albarran, supra, 149 Cal.App.4th at p. 232, fn. 18.)
As noted above, the evidence of defendants prior juvenile adjudications played a very minor role in the trial. The evidence was offered as part of the Peoples gang experts testimony concerning predicate offenses committed by members of North Colton. The context in which the evidence was offered suggested to the jury that the evidence was relevant only to establish the predicate offenses necessary for the gang enhancements. In addition, the trial court instructed the jury pursuant to CALJIC No. 17.24.3, that it was not permitted to consider the evidence as propensity evidence, and that it was to consider the evidence only for the limited purpose of determining whether the People had established the elements of the gang enhancement allegations.
The prosecutor began his questioning of the gang expert regarding these offenses by saying, "Going to show you some court records pertaining to some of the crimes that youve talked about, so we can discuss criminal activity of the gang."
In light of the overwhelming evidence of the defendants membership in a "very violent gang," evidence that each of the defendants had prior juvenile adjudications is unlikely to have been unduly prejudicial. This is particularly true in light of the fact that the testimony regarding the prior convictions was brief, spanning less than a page of the reporters transcript, the prosecutor did not rely on the prior offenses in attempting to prove the defendants commission of the charged offenses, and the prior adjudications were not particularly inflammatory, in view of the nature of the charged offenses.
The People also presented strong evidence of the defendants guilt, including essentially undisputed evidence that both defendants committed a battery on Moreno just minutes before the killing. Under these circumstances, the fact that the jury learned that Sanchez and Betancourt had committed offenses while they were juveniles in the 1990s is highly unlikely to have been unduly prejudicial.
During their closing arguments, Betancourts attorney told the jury to "vote guilty on the one on Armando Moreno," and Sanchezs attorney acknowledged that Moreno "was beaten."
In sum, while the admission of the uncharged offense evidence carried with it the possibility of great prejudice, in light of the minor role the uncharged evidence played at trial, the limiting instruction the court gave to the jury, and the strong evidence that the defendants committed the charged offenses, it is not reasonably probable that the jury would have reached a more favorable result but for the error. Accordingly, we conclude that the error was harmless.
B. Sanchezs claims
1. The trial court did not commit reversible error in failing to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter
Sanchez claims that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter.
"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, `"that is, evidence that a reasonable jury could find persuasive" [citation], which, if accepted, `"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser. [Citation]." (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
Sanchez claims that the trial court was required to instruct the jury on involuntary manslaughter because there was evidence that he acted in imperfect self-defense without having harbored the intent to kill or having acted with a conscious disregard for life. (Compare with People v. Blakeley (2000) 23 Cal.4th 82, 91 ["a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter"].) Sanchez does not point to substantial evidence upon which the jury in this case could have concluded that he was guilty of involuntary manslaughter, and we find no such evidence. (See Manriquez, supra, 37 Cal.4th at p. 588 [rejecting claim that trial court failed to instruct sua sponte on involuntary manslaughter where defendant testified that shooting was accidental, because evidence of multiple gunshot wounds inflicted at close range demonstrated that shooting was intentional].)
Even assuming for the sake of argument that the trial court erred in failing to instruct the jury on involuntary manslaughter, any such error "`is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 392.) The California Supreme Court has repeatedly held that in cases in which a jury convicts a defendant of first degree murder rather than the lesser included offense of voluntary manslaughter, a defendant suffers no prejudice from the trial courts failure to instruct on involuntary manslaughter. (E.g., People v. Rogers (2006) 39 Cal.4th 826, 884; Manriquez, supra, 37 Cal.4th at p. 588, People v. Cook (2006) 39 Cal.4th 566, 597.)
In this case, the jury convicted Sanchez of first degree murder rather than the lesser included offenses of second degree murder and voluntary manslaughter. Therefore, Sanchez could not have been prejudiced by the lack of a jury instruction regarding involuntary manslaughter.
Sanchez also contends that his trial counsel was ineffective for failing to request an instruction regarding involuntary manslaughter. In light of our conclusion that Sanchez could not have suffered any harm from the trial courts failure to give the instruction on involuntary manslaughter, Sanchezs claim of ineffective assistance of counsel fails. (See, e.g., People v. Hutchins (2007) 147 Cal.App.4th 992, 999 [ineffective assistance of counsel claim fails under Strickland v. Washington (1984) 466 U.S. 668, 687-688 where defendant fails to demonstrate prejudice].)
Accordingly, we conclude that the trial court did not commit reversible error in failing to instruct the jury regarding involuntary manslaughter.
In light of our conclusion, we need not consider the Peoples contention that Sanchezs trial counsel invited any error by agreeing with the trial court that the only lesser included offense instructions the court should give were second degree murder and voluntary manslaughter.
2. The trial court did not err in refusing to bifurcate trial of the gang enhancement allegations from trial of the substantive offenses
Sanchez claims that the trial court erred in refusing to bifurcate trial of the gang enhancement allegations, pursuant to section 186.22, subdivision (b) and section 12022.53, subdivision (e), from trial of the substantive offenses. Sanchez also claims that even if the trial court properly denied his pretrial request for bifurcation, reversal of his murder conviction is required because the courts failure to bifurcate ultimately resulted in "gross unfairness" amounting to a violation of due process.
a. Standard of review
"The determination of whether the risk of undue prejudice to the defendant requires bifurcation is within the sound discretion of the trial court. [Citation.] On appeal, we review the trial courts ruling for an abuse of discretion, based on a review of the record that was before the trial court at the time of the ruling. [Citation.] However, even if the trial courts ruling was correct at the time it was made, reversal is required if the defendant shows the failure to bifurcate resulted in `"gross unfairness" amounting to a denial of due process. (People v. Mendoza (2000) 24 Cal.4th 130, 162 [Mendoza], quoting People v. Arias (1996) 13 Cal.4th 92, 127 [Arias ].)" (People v. Burch (2007) 148 Cal.App.4th 862, 867 (Burch).)
In Mendoza and Arias, the Supreme Court stated that a trial courts proper severance or joinder ruling that nevertheless results in gross unfairness requires reversal. (Mendoza, supra, 24 Cal.4th at p. 162; Arias, supra, 13 Cal.4th at p. 127.) However, following Burch, we assume for purposes of this decision Mendoza and Arias apply in the bifurcation context as well.
b. Factual and procedural background
Before trial, the People filed a brief entitled, "Peoples Trial Brief Regarding Gang Evidence," in which they argued that the court should not bifurcate trial of the section 186.22, subdivision (b) gang allegation from trial on the substantive offenses. The People argued that bifurcation was unwarranted because evidence of each defendants gang membership was relevant and admissible with respect to the substantive offenses on the issues of intent, knowledge, motive, aiding and abetting, and witness bias. The People argued:
"[T]he murder was committed in the course of a mutual venture by two North Side Colton gang members, outside their home territory, to commit violence in the process of collecting a debt. The gang evidence is what establishes the ties between the defendants and the motive for them knowingly to act together. It also establishes the defendants knowledge of the presence of the gun and the criminal purpose of the actual killer. Defendant Betancourt is expected to deny knowing that Sanchez was going to do anything more than beat Joseph Flores. Accordingly, the gang evidence is especially probative on the issue of natural and reasonably forseeable consequences. Further, several of the witnesses are extremely reluctant to testify based on the defendants ties to North Side Colton. . . . The People must be permitted to explore the nature of the witnesses reluctance . . . ."
Sanchez filed a pretrial motion to bifurcate trial of the section 186.22, subdivision (b) gang enhancement. In his motion, Sanchez argued that the motive for the charged crimes was not gang-related, the alleged victims were not gang members, the defendants did not identify themselves as gang members at the time of the incident that resulted in the killing, and the percipient witnesses did not have information that was relevant to the gang enhancement.
At a pretrial hearing, Sanchezs counsel reiterated his request for bifurcation and clarified that he was requesting bifurcation of the gang-related firearm enhancement allegations (§ 12022.53, subds. (d),(e)) as well as the section 186.22, subdivision (b) allegation. After hearing further argument from both the prosecutor and counsel for the defendants, the court denied the motion to bifurcate.
During the hearing, the prosecutor noted that there was evidence that the defendants referred to their gang during the attack on Moreno, just minutes before Albert was killed.
At trial, the People offered various types of gang-related evidence, including evidence that established North Side Coltons status as a criminal street gang, evidence of defendants membership in North Side Colton, expert testimony regarding gang behavior, and evidence offered to demonstrate the defendants gang-related motivation and intent in committing the charged offenses. (See part II.E., ante.)
The court instructed the jury regarding the limited purpose for which it could consider the gang evidence, pursuant to CALJIC No. 17.24.3, as discussed in part III.A.3.a., ante.
c. Governing law
In People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez), the Supreme Court considered the claim of two codefendants that a trial court had erred in failing to bifurcate trial of a gang enhancement allegation. The Hernandez court noted that bifurcation is clearly not required to the extent evidence of a defendants gang membership is admissible on the charged offenses without regard to any gang enhancement allegation:
"[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliation — including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (Id. at pp. 1049-1050.)
The Hernandez court further made clear that, "Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself . . . a court may still deny bifurcation." (Hernandez, supra, 33 Cal.4th at p. 1050.) Noting the benefits of unitary trials, the Hernandez court explained that a "trial courts discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged." (Ibid.) Bifurcation is required only where a defendant can "`clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.]" (Id. at p. 1051.)
In applying this law, the Hernandez court noted that much of the gang evidence presented in that case was relevant to the charged offense, on the issues of motive and intent. (Hernandez, supra, 33 Cal.4th at p. 1050.) The Hernandez court acknowledged that evidence of prior criminal acts by the defendants fellow gang members and "some of the expert testimony" would not have been admissible at a trial limited to the charged offense (id. at p. 1051), but held that the trial court had acted within its discretion in denying bifurcation. (Ibid.)
d. The trial court did not abuse its discretion in refusing to bifurcate the trial of the gang enhancements
Sanchez claims that the trial court abused its discretion in denying the motion to bifurcate because "[a]t the time the ruling was made . . . there was no evidence that the shooting of Albert was a gang-related crime." We disagree. The Peoples trial brief, as well as the prosecutors comments at the hearing on the motion to bifurcate, demonstrate that the trial court did not abuse its discretion in refusing to bifurcate. As in Hernandez, the Peoples offer of proof demonstrated that gang-related evidence would be highly relevant on the issues of motive and intent with respect to the underlying offenses. (Hernandez, supra, 33 Cal.4th at p. 1050.)
Further, the trial courts refusal to bifurcate trial on the gang enhancements did not result in gross unfairness amounting to a denial of due process. Sanchez argues that the gang evidence was "not intertwined with the underlying offense [and] it was not even relevant to any issue relating to the murder." In fact, much of the gang related evidence was relevant to the jurys determination of the substantive offenses. As we discuss in greater detail in part III.A.1., ante, with respect to motive, the jury could have reasonably inferred from the circumstances of the killing and from Officer Vogelsangs testimony that Sanchezs motive was to demonstrate his willingness to use violence to further the gangs interests. Gang evidence was also highly probative on the issue of the foreseeability of the murder, for purposes of determining the applicability of the natural and probable consequences doctrine.
In addition, the modified version of CALJIC No. 17.24.3 that the trial court gave was favorable to Sanchez because it suggested to the jury that it could not consider any of the gang-related evidence in determining his guilt on the charged offenses. Although the fact that other members of the North Side Colton gang had committed other crimes would not have been admissible but for the gang enhancement allegations (Hernandez, supra, 33 Cal.4th at p. 1051), as discussed above, much of the gang-related evidence was admissible on the issues of motive and intent with respect to the underlying offenses. (Ibid. [noting that gang-related evidence tending to show motive and intent is relevant in proving charged offense].) Under these circumstances, it is clear that the trial courts refusal to bifurcate did not result in "gross unfairness."
C. Betancourts claims
1. The trial court did not commit reversible error in allowing the People to attempt to examine Joseph in front of the jury, despite knowing that Joseph intended to refuse to answer any substantive questions
Betancourt claims that the trial court erred in allowing the People to attempt to examine Joseph in front of the jury despite knowing that Joseph intended to refuse to answer any substantive questions. Betancourt contends that the error resulted in a violation of his constitutional right to confront adverse witnesses and his constitutional right to due process and violated Evidence Code section 352.
We conclude that the trial court did not violate Betancourts constitutional rights by allowing the People to attempt to examine Joseph in front of the jury. We also conclude that the trial court did not abuse its discretion under Evidence Code section 352 in allowing the People to call Joseph as a witness and attempting to examine him.
We further conclude that the trial court did err in failing to sustain Betancourts renewed Evidence Code section 352 objection to the prosecutors continued examination of Joseph after it became clear that Joseph would refuse to answer all substantive questions, but that the error was harmless.
a. Standard of review
The California Supreme Court has held that appellate courts should generally apply the de novo or independent standard of review to claims that implicate a defendants constitutional right to confrontation. (People v. Seijas (2005) 36 Cal.4th 291, 304 [concluding that "independent standard of review" applies because "the ruling we are reviewing affects the constitutional right of confrontation"].) Accordingly, we apply the de novo standard of review to Betancourts claim that the trial court violated his constitutional right to confrontation and to his contention that allowing the People to attempt to examine Joseph in the presence of the jury deprived Betancourt of his right to due process and a fair trial. (See Albarran, supra, 149 Cal.App.4th at p. 225, fn. 7 ["Because the present case . . . implicates defendants federal constitutional rights to due process and concerns the fundamental fairness of his trial, we will apply the de novo standard of review"].) We apply the abuse of discretion standard of review to Betancourts claim that the trial court erred under Evidence Code section 352. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
b. Factual and procedural background
i. Events prior to Josephs examination
During the trial, outside the presence of the jury, the prosecutor informed the court that he intended to call Joseph as a witness, but that Joseph had told the prosecutor that he would refuse to testify and that he intended to assert his Fifth Amendment privilege not to incriminate himself. The trial court appointed counsel for Joseph for the purpose of determining whether Joseph could validly claim a Fifth Amendment privilege. Josephs counsel subsequently informed the court that there were no Fifth Amendment issues with respect to any questions the prosecutor might ask Joseph on direct examination. However, Josephs counsel stated that notwithstanding the lack of a valid claim of privilege, Joseph intended to refuse to answer any questions.
Betancourts counsel requested that the court ask Joseph outside the presence of the jury whether he intended to answer any questions, and argued that it would be "more prejudicial to the defendants than probative" to have Joseph refuse to answer questions in front of the jury. The court indicated that the prosecutor had a right to call Joseph to the stand, given that Joseph did not have a valid claim of privilege.
The following day, outside the presence of the jury, both defendants requested that the court prevent the People from calling Joseph as a witness in light of his intended refusal to answer any questions. The defendants argued that if Joseph were to refuse to testify, it would be improper to allow the prosecutor to impeach him with any prior statements he may have given to the police, and that the defendants would be prejudiced because the jury would infer from the prosecutors questions that Joseph had made the implied statements to the police. Betancourt claimed that by allowing the prosecutor to "read the transcript of the interrogation or interview of Joseph into the record," without Joseph giving any sworn testimony, the court would be denying Betancourt his constitutional right to confrontation.
The prosecutor responded by stating that he was entitled to attempt to examine Joseph in front of the jury. The court agreed, and allowed the People to call Joseph as a witness.
ii. The prosecutors examination of Joseph
Joseph responded to some preliminary questions the prosecutor posed, stating his age and that Albert was his father. However, Joseph subsequently refused to identify a photograph of his father, or to answer the prosecutors questions regarding whether his father had been killed on the night of the murder, and whether Joseph was present when his father was shot. Joseph admitted that he had been convicted of a variety of felonies, that he was currently in custody for a parole violation, and that he had been in and out of prison in the past. Joseph also admitted that he had previously failed to appear to testify in this case, and that he had been arrested as a result, after a foot pursuit.
The following colloquy then occurred:
"[Prosecutor]: And you and I have spoken a few times before; is that right?"
"[Joseph]: I refuse to answer that question."
"[Prosecutor]: Didnt I come down to Centinela State Prison some months ago with Investigator Randall Christianson to talk to you?"
"[Joseph]: I refuse to answer that question."
"[Prosecutor]: We went down there. We talked to you about testifying; is that right?"
"[Joseph]: I refuse to answer that question."
"[Prosecutor]: Youre afraid to testify, arent you?
"[Joseph]: I refuse to answer that question."
"[Prosecutor]: Because youre going to be in and out prison, youre afraid that if you testify, youll be deemed a rat; is that right?
"[Joseph]: I refuse to answer that question."
The prosecutor then began to ask leading questions regarding the events that occurred the night Albert was murdered:
"[Prosecutor]: The night that your father was shot, you were beaten by two men; is that right?"
"[Joseph]: I refuse to answer that question."
""[Prosecutor]: You were jumped by two Hispanic men in the company of Annie Durocher; is that right?
"[Joseph]: I refuse to answer that question."
The prosecutor asked Joseph whether he had family members present in the courtroom. Joseph responded in the affirmative. The prosecutor then asked whether Joseph feared for their safety. Betancourt objected, claiming a violation of his right to confront adverse witnesses. The court responded, "You made your objection. I dont allow speaking objections. Your objection is clear."
The prosecutor proceeded to ask Joseph, "Didnt you tell Investigator Christianson and I that you were concerned for your familys safety if you testify?" The court sustained Sanchezs hearsay objection to the question.
The prosecutor continued, asking two leading questions concerning events on the night of the murder, which Joseph refused to answer. The prosecutor then asked Joseph whether he had loved his father, to which Joseph replied, "Yes." The prosecutor asked whether it hurt Joseph that his father was killed, whether Joseph missed his father, and whether Joseph loved his family. Joseph refused to answer all three questions. The prosecutor asked Joseph whether he was attempting to help the defendants, whether Joseph had started the fight on the night in question, whether Joseph had any weapons in his possession on the night of the murder, and what Joseph had been wearing on the night of the murder. Joseph refused to answer all of these questions.
The prosecutor continued the examination as follows:
"[Prosecutor]: We spoke yesterday; is that right?"
"[Joseph]: I refuse to answer that question."
"[Prosecutor]: In the D.A.s Office with Mr. Christianson. I was there. I gave you a chance to read a transcript, isnt that right?"
"[Joseph]: I refuse to answer that question."
[¶] . . . [¶]
"[Prosecutor]: You were interviewed by Detective Bruins back in November of 2002; is that right?"
"[Joseph]: I refuse to answer that question."
The prosecutor then asked Joseph a series of questions about whether Joseph was a gang member, and whether he was afraid of the defendants gang. Joseph refused to answer these questions. The prosecutor continued, asking Joseph whether he wanted the people who had killed his father to be prosecuted. Joseph refused to answer. The prosecutor then asked Joseph whether he had previously told the prosecutor that he was afraid to testify. The court sustained the defendants hearsay objections to that question.
The prosecutor continued by asking Joseph, "What can we do to get you to tell us what happened?" Betancourts counsel raised a "continuing objection on 352 grounds, and argumentative grounds." The court overruled the objections.
The prosecutor then asked Joseph whether he knew Moreno, Durocher, April, Crystal, and Villalobos. Joseph refused to answer. At this point, the prosecutor requested that the court instruct Joseph to answer the prosecutors questions. The court responded by stating, "Mr. Flores, you understand your refusal to answer these questions is not based on a privilege, and you are required by law to answer them; is that right?" Joseph responded in the affirmative.
The prosecutor continued his examination, asking Joseph a series of questions pertaining to Josephs emotions, such as "Did it hurt you when you heard your father cry?" Joseph refused to answer. The prosecutor then asked a number of questions concerning whether Josephs refusal to testify was due to fear for his safety and the safety of his family, in light of the defendants status as gang members. Joseph refused to answer.
After Joseph refused to answer these questions, the prosecutor asked the court to hold Joseph in contempt. Sanchezs attorney objected. After the court overruled the objection, the prosecutor said to Joseph, "Come back tomorrow." The court noted that Joseph was in custody, and instructed Joseph to go with a deputy.
The following day, the prosecutor resumed his questioning of Joseph. The prosecutor posed 19 additional leading questions to Joseph regarding the events that immediately preceded the murder, such as:
"Back on October 16, 2002, you saw Annie Durocher starting to hit Alicia Villalobos outside your family home: isnt that right?"
"You were telling her, `Kick back Annie, kick back; isnt that right?"
"And then you saw two men coming from a red truck out of the corner of your eye; isnt that right?"
"They were on either side of you, and one of them hit you: isnt that right?"
"And then another one hit you?"
"Then out of the corner of your eye, you saw someone running up; isnt that right?"
"Then you heard just a single gunshot; isnt that right?"
"You didnt see who fired the gun, though, did you?"
Joseph refused to answer all of the questions. After Joseph refused to answer, Betancourt objected for a third time, pursuant to Evidence Code section 352. The court asked Joseph whether he intended to continue to refuse to answer all questions, and Joseph responded in the affirmative. The court then sustained the objection, ruled that Joseph was in contempt of court, and ordered him incarcerated. After holding Joseph in contempt, the court instructed the jury that, "nothing the attorneys say is evidence. Even the questions that have been asked of this last witness are not evidence. The evidence is the testimony you hear from the witnesses themselves and not what the attorneys say at any time."
During jury instructions, the court instructed the jury that "[s]tatements made by the attorneys during the trial are not evidence." The court further instructed the jury that they should not "assume to be true any insinuation suggested by a question asked of a witness. A question is not evidence and it may be considered only as it helps you to understand the answer."
During closing argument, the prosecutor stated, "Joseph took the stand [and] refused to answer any questions. We dont get to play anything of the statements that came before. Because refusal to answer isnt the same thing as a feigned lack of memory."
The prosecutor was contrasting his inability to present the statements Joseph allegedly previously made to police with his ability to offer Morenos prior statements to police, in light of Morenos testimony that he did not remember the battery that Sanchez and Betancourt perpetrated on him.
The prosecutor also stated during closing argument, "Joseph said, `They shot my dad. They shot my dad, as hes running in the house, as hes running into the Hands house. Thats the one thing he would tell us. He spoke to the police, told you that. I tried to put him up on the stand so that you folks would hear what he had to say. He wouldnt answer the questions, not because he had a Fifth Amendment privilege . . . [but] because of the lifestyle he lives or where he is."
Steven testified that Joseph made these statements immediately after the shooting.
c. Governing law
i. Relevant constitutional and statutory provisions
As noted above, Betancourt objected to the prosecutors questioning of Joseph on the grounds that the questioning violated his constitutional right to confront adverse witnesses, and that the questioning was more prejudicial than probative, under Evidence Code section 352.
In a criminal case, the defendant has a constitutional right "to be confronted with the witnesses against [him]." (U.S. Const. 6th Amend; see also Cal. Const. art. I, § 15 [providing defendant with right to "be confronted with the witnesses against [him]"].)
ii. Relevant case law
In Namet v. U.S. (1963) 373 U.S. 179, 185-187 (Namet), the United States Supreme Court noted that several lower courts had concluded that a trial court may commit reversible error if the court allows a prosecutor to call a witness whom the prosecutor knows will claim his Fifth Amendment privilege not to incriminate himself. The Namet court noted that these lower courts had concluded that "in the circumstances of a given case, inferences from a witnesss refusal to answer added critical weight to the prosecutions case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant." (Id. at p. 187.) However, the Namet court concluded that it "need not pass upon the correctness," of these lower court decisions in view of the circumstances that existed in that case. (Id. at pp. 187-188.)
In Douglas v. Alabama (1965) 380 U.S. 415, 419 (Douglas), the United States Supreme Court relied on Namet in holding that the trial court had violated the defendants right to confrontation. The prosecutor in Douglas called a recalcitrant witness to the stand. The witness refused to answer questions regarding the charged crime. (Douglas, supra, 380 U.S. at 416.) While questioning the witness, the prosecutor read a statement the witness allegedly made to the police in which the witness inculpated the defendant in firing a shotgun with the intent to murder. (Ibid.) Three law enforcement officers identified the document the prosecutor read as embodying a statement the witness had made to police. (Id. at p. 417.) The witnesss alleged statement was the only direct evidence that the defendant had fired the shotgun. (Id. at p. 419.) Under these circumstances, the Supreme Court held that the defendants inability to cross-examine the witness as to the statement he allegedly made to the police denied the defendant his constitutional right to confrontation. (Id. at p. 419.)
California cases have relied on Douglas to hold that a defendants right to confrontation may be violated where, in examining a recalcitrant witness, the prosecutor poses leading questions that provide the details of prior statements the witness made to police regarding a defendants commission of a crime. (E.g., People v. Rios (1985) 163 Cal.App.3d 852, 864 ["the admission of a prior statement made by a witness who stonewalls at trial and refuses to answer any question on direct or cross-examination denies a defendant the right to confrontation which contemplates a meaningful opportunity to cross-examine the witness"]; People v. Shipe (1975) 49 Cal.App.3d 343, 355 ["[the prosecutor] succeeded in creating the distinct impression that [the witnesses] had talked to the authorities, that they described the events vividly depicted in the prosecutors questions and that their statements were true"]; People v. Harris (1969) 270 Cal.App.2d 863, 867 ["The prosecution then proceeded to ask questions . . . that called for hearsay answers concerning statements [the witness] had made to various officers about the fight"].)
On the other hand, it is proper in a criminal case to allow the prosecutor to call as a witness a person who refuses to answer questions about an offense, where the person does not have a valid claim of legal privilege. (E.g., People v. Shipe, supra, 49 Cal.App.3d at p. 351 ["the constitutional error committed in this case was not in calling the witnesses and forcing them to claim the privilege against self-incrimination [which the trial court had ruled the witnesses did not have]; the error was in the manner in which the witnesses were questioned"]; People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez) [noting that while it is improper to require a witness who has a valid Fifth Amendment privilege to invoke the privilege in front of the jury, "where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies"].) In such an instance, the People are entitled to attempt to examine the witness in front of the jury, notwithstanding the witnesss prior indications of recalcitrance. (Ibid.)
Under some circumstances, "[j]urors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony." (Lopez, supra, 71 Cal.App.4th at p. 1554.) Thus, for example, in Lopez, where a witness who did not have a valid Fifth Amendment privilege refused to answer questions whose answers could have been damaging to his fellow gang member defendant, the Lopez court held that "the jury was entitled to consider [the witnesss] improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members." (Lopez, supra, 71 Cal.App.4th at pp. 1555-1556.)
d. The prosecutors questioning of Joseph in front of the jury did not violate Betancourts constitutional right to confront adverse witnesses or his constitutional right to due process
Betancourts primary constitutional contention is that the trial court violated his right to confrontation by allowing the prosecutor to ask leading questions that purportedly "contained the details of a prior statement to the police and the prosecutor." We disagree. While the prosecutor did improperly pose two questions concerning prior statements Joseph had purportedly made to the prosecutor, neither statement pertained to the substance of the underlying offenses. Rather, in both instances, the prosecutor asked Joseph whether he had made prior statements to the prosecutor indicating that he was afraid to testify, and the trial court properly sustained hearsay objections to both of these questions.
In addition, while the prosecutor did improperly imply to the jury, both in his questioning of Joseph and in his closing argument, that Joseph had given a prior statement to the police, unlike in Douglas and its California progeny, the prosecutor did not create "the distinct and almost irrefutable inference that the witness[] had related the events about which [he was] being questioned to the authorities and that [his] statements were true." (People v. Shipe, supra, 49 Cal.App.3d at pp. 349-350.) Rather, the majority of the questions the prosecutor posed to Joseph were either questions about the offenses, without reference to any prior statements Joseph may have made, or attempts to have Joseph explain his refusal to testify. Under these circumstances, while there was a danger that the jury would improperly treat the prosecutors leading questions as evidence (a danger we examine below in considering Betancourts objection under Evidence Code section 352), Betancourt was not deprived of his right to confront and cross-examine Joseph about prior statements Joseph may have made. Accordingly, we conclude that the prosecutors questioning of Joseph did not violate Betancourts constitutional right to confront adverse witnesses.
Citing Namet, Betancourt also claims that allowing the prosecutor to attempt to examine Joseph in front of the jury violated his right to due process and to a fair trial. Namet does not establish any distinct constitutional rights beyond those adopted in Douglas. (Douglas, supra, 380 U.S. at p. 420.) Accordingly, we reject Betancourts due process argument pursuant to Namet for the same reasons that we reject his confrontation argument pursuant to Douglas.
e. The trial court did not err under Evidence Code section 352 in allowing the People to attempt to examine Joseph, but did err in overruling Betancourts objection to the prosecutors continued examination of Joseph once it was clear that Joseph would not answer any substantive questions
Betancourt claims that the trial court erred under Evidence Code section 352 in allowing the prosecutor to examine Joseph in front of the jury. Betancourt argues that any inferences the jury could have legitimately drawn from Josephs refusal to testify were outweighed by the possibility that the jury would improperly infer from the prosecutors questions that Joseph had spoken to the police, that he had implicated the defendants in the charged offenses, and that the defendants or their fellow gang members were coercing him not to testify at trial.
As noted above, prior to the prosecutors examination of Joseph, Betancourts counsel argued that it would be more "more prejudicial to the defendants than probative" to allow the examination. We therefore consider whether the trial court abused its discretion under Evidence Code section 352 in initially allowing the People to attempt to examine Joseph in front of the jury.
The trial court could have reasonably determined that the prosecutors proposed examination of Joseph would be potentially probative, for two reasons. First, the trial court could have believed that Joseph might offer substantive testimony once he took the witness stand, despite prior indications of recalcitrance. In addition, the People were entitled to call Joseph to the stand and to ask him questions in front of the jury regarding the murder, to demonstrate that Joseph was refusing to answer questions about the murder. If the People had been precluded from calling Joseph as a witness and posing questions to him in front of the jury, the jury might have inferred that the reason Joseph had not been called as a witness was because his testimony would not be favorable to the Peoples case. Under the circumstances of this case, in which Joseph was refusing to testify regarding the murder of his own father, committed in his presence, the trial court could have reasonably exercised its discretion in determining that the potential probative aspects of allowing the People to call Joseph as a witness and asking him questions were not substantially outweighed by the potential prejudice that might stem from the jurys improperly considering the prosecutors questions as substantive evidence.
By the time Betancourt raised his second Evidence Code section 352 objection to the prosecutors examination of Joseph, it was clear that Joseph was not going to provide any substantive information in response to the prosecutors questions, and that the questioning was therefore not likely to elicit relevant information. Once it was became obvious that Joseph did not intend to answer any substantive questions, the probative value of the examination decreased significantly, while at the same time, the potential for unfair prejudice continued to exist, as the prosecutor posed one unanswered leading question after another. Under these circumstances, we conclude that the trial court abused its discretion in overruling Betancourts second section 352 objection raised on the first day of the prosecutors examination of Joseph.
We note that the court sustained Betancourts third Evidence Code section 352 objection on the second day of the prosecutors examination of Joseph.
f. The error was harmless
"Error in the admission or exclusion of evidence following an exercise of discretion under [Evidence Code] section 352 is tested for prejudice under the [Watson, supra, 46 Cal.2d 818] harmless error test." (People v. Mullens (2004) 119 Cal.App.4th 648, 659.) Under that test, we must ask whether it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.)
In view of our conclusion that the trial court did not err in allowing the prosecutor to attempt to examine Joseph, it was proper for the jury to hear some of the prosecutors questions concerning the circumstances of the shooting, and Josephs refusal to answer. In addition, the trial court instructed the jury both at the conclusion of the prosecutors examination of Joseph and at the close of evidence that the prosecutors questions were not evidence. Further, in his questions to Joseph, the prosecutor essentially merely reiterated the description of the circumstances just before the murder as Durocher had previously described during her testimony.
Under these circumstances, it is not reasonably probable that there would have been a more favorable result as to either defendant if the trial court had properly limited the Peoples examination of Joseph pursuant to Evidence Code section 352.
We include Sanchez in our harmless analysis, since he has joined in all of Betancourts claims on appeal.
2. The trial court did not err in instructing the jury pursuant to CALJIC No. 3.00 that, "Each principal, regardless of the extent or manner of participation, is equally guilty"
Betancourt claims that the trial court erred in instructing the jury pursuant to CALJIC No. 3.00 that, "Each principal, regardless of the extent or manner of participation, is equally guilty." Betancourt argues that this instruction is misleading in a case in which the People seek to hold a defendant criminally liable pursuant to the natural and probable consequences doctrine, because the defendant may not be guilty of the same offense as the direct perpetrator.
"The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law. . . ." (People v. Posey (2004) 32 Cal.4th 193, 218 (Posey).)
a. Factual and procedural background
The trial court instructed the jury pursuant to a modified version of 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:
"One, those who directly and actively commit the act constituting the crime; or
"Two, those who aid and abet the commission of the crime."
While the jury was deliberating, the jury submitted the following question to the court:
"If we find [Sanchez] guilty of 1st degree murd[er], [a]nd we find [Betancourt] Guilty of battery do we have to find [Betancourt] Guilty of 1st degree murd[er]?"
After consulting with all parties, the court provided the jury with the following answer:
"No. Each count for each defendant is considered separately. Refer to the instructions numbered 17.00 and 17.02 on page 26 of your instructions. It may assist you to also refer to the instructions related to aiding and abetting. They are numbered 3.00, 3.01 and 3.02 and are found on pages 12 and 13 of your instructions."
b. The trial court did nor err in instructing the jury pursuant to CALJIC No. 3.00
Where a defendant aider and abettor is prosecuted pursuant to the natural and probable consequences doctrine, "[the] aider and abettor may be found guilty of crimes committed by the perpetrator which are less serious than the gravest offense the perpetrator commits, i.e., the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrators criminal acts were reasonably foreseeable under the circumstances and which were not." (People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587 (Woods), italics omitted.) Betancourt argues that, pursuant to Woods, a properly instructed jury could have determined that although Sanchez was guilty of first degree murder, Betancourt was guilty of only second degree murder or voluntary manslaughter, because only those offenses, and not first degree murder, were reasonably foreseeable. Betancourt argues that "[a]pplying this instruction [CALJIC No. 3.00], once the jury concluded that Sanchez was the killer and [that] he was guilty of first degree murder, Betancourt was also guilty of first degree murder . . . ."
We disagree. A defendant who is guilty of only second degree murder or voluntary manslaughter, by virtue of the natural and probable consequences doctrine, would not be a principal to the crime of first degree murder. The trial court thus did not err in instructing the jury that a defendant who is a principal to a crime is "equally guilty" with all other principals "in that crime." (CALJIC No. 3.00.) We therefore reject Betancourts claim that CALJIC No. 3.00 forced the jury to find Betancourt guilty of first degree murder, upon finding Sanchez guilty of first degree murder.
In responding to the jurys question, the trial court specifically instructed the jury that it was not required to find Betancourt guilty of first degree murder merely upon finding him guilty of battery and Sanchez guilty of first degree murder.
We conclude that the trial court did not err in instructing the jury pursuant to CALJIC No. 3.00.
In light of our conclusion, we need not consider the Peoples contention that Betancourt forfeited this claim by failing to object in the trial court, nor need we address the Peoples contention that any error in instructing the jury was harmless in light of the jurys finding Betancourt guilty of first degree murder.
3. The trial court did not err in instructing the jury regarding the degree of foreseeability that is required under the natural and probable consequences doctrine
Betancourt claims that the trial court erred in instructing the jury regarding the degree of foreseeability that is required under the natural and probable consequences doctrine. We review Betancourts claim de novo. (See Posey, supra, 32 Cal.4th at p. 218.)
The trial court instructed the jury pursuant to a modified version of CALJIC No. 3.02 in relevant part as follows:
"One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted.
"In order to find the defendant . . . guilty of the crime of murder as charged in Count 1, you must be satisfied beyond a reasonable doubt that, one the crime of battery on Joseph Flores was committed; two, that the defendant aided and abetted that crime; and three, that a coprincipal in that crime committed the crimes of murder; and, four, the crime of murder was a natural and probable consequence of the commission of the crime of battery on Joseph Flores.
"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 of 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." (Italics added.)
Betancourt claims the trial court should have instructed the jury that a natural and probable consequence is one that is "substantially certain to result." (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746 (Gomez).)
Case law provides ample support for the "reasonably expected" standard to which CALJIC No. 3.02 refers, and no support for the "substantially certain" standard that Betancourt urges. In People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman ), the Supreme Court explained that pursuant to 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. . . ." (Id. at p. 261, quoting People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, italics added.)
In People v. Coffman (2004) 34 Cal.4th 1, 106 (Coffman), a defendant who was prosecuted pursuant to the natural and probable consequences doctrine claimed that the trial court had erred in failing to define the term "natural and probable." The Coffman court rejected this claim, reasoning:
"[A]n 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. . . .
[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. [Citations.] `A natural and probable consequence is a foreseeable consequence [citation]; the concepts are equivalent in both legal and common usage. Coffman cites no authority for the contention that the term `natural and probable consequences is one having a meaning peculiar to the legal context and that, therefore, the term must be expressly defined for the jury. [Citation.]" (Id. at pp. 106-107, italics added.)
The Coffman court held both that the proper measure of the certainty necessary to trigger the application of the natural and probable consequences doctrine is reasonable foreseeability, and that a trial court is not required to provide the jury with further guidance as to the meaning of the term "natural and probable consequences." (Coffman, supra, 34 Cal.4th at pp. 106-107.)
In discussing the natural and probable consequences doctrine, the Court of Appeal, in People v. Nguyen (1993) 21 Cal.App.4th 518 (Nguyen), specifically rejected the substantially certain standard. (Id. at p. 530 ["For a criminal act to be a `reasonably foreseeable or a `natural and probable consequence of another criminal design it is not necessary that the collateral act be specifically planned or agreed upon, nor even that it be substantially certain to result from the commission of the planned act"].)
Contrary to Betancourts argument, Gomez, supra, 50 Cal.App.4th at page 746, does not support the proposition that, for purposes of the natural and probable consequences doctrine, a consequence is natural and probable only if it is "substantially certain to result." In the course of considering the scope of the element of intent in the tort of intentional spoliation of evidence, the Gomez court stated:
"As a general rule, California law recognizes that `. . . every person is presumed to intend the natural and probable consequences of his acts. [Citation.] Thus, a person who acts willfully may be said to intend `"`those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire). [Citation.]" [Citation.] [Citation.]" (Gomez, supra, 50 Cal.App.4th at p. 746.)
Most fundamentally, Gomez is inapposite because the Gomez court was not discussing the natural and probable consequences doctrine. Rather, the court was discussing the requisite intent necessary to establish an intentional tort, while the natural and probable consequences doctrine, where applicable, holds defendants criminally liable for "unintended crime[s]." (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), italics added.) Gomez is thus plainly distinguishable. (See McCoy, supra, 25 Cal.4th at p. 1118, fn. 1 [discussing distinction between intent required for intended target offense and liability for unintended charged offenses pursuant to the natural and probable consequence doctrine].)
We conclude that the trial court did not err in instructing the jury pursuant to CALJIC No. 3.02.
4. A first degree murder can be a natural and probable consequence of simple battery
Betancourt claims that this court must reverse his conviction for first degree murder because first degree murder is not, as a matter of law, a natural and probable consequence of simple battery. This claim raises a question of law, which we review de novo. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)
a. Governing law
In Prettyman, supra, 14 Cal.4th at page 269, the Supreme Court stated that "rarely, if ever," is it true that a serious offense committed by an aider and abettors confederate is the natural and probable consequence of a "`trivial" activity. "Murder, for instance, is not the `natural and probable consequence of `trivial activities. To trigger application of the `natural and probable consequences doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (Ibid.)
Whether a particular criminal act is a natural and probable consequence of another criminal act "does not turn on the defendants subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]" (Nguyen, supra, 21 Cal.App.4th at p. 531.) Further, "in determining whether a collateral criminal offense was reasonably foreseeable to a participant in a criminal endeavor, consideration is not restricted to the circumstances prevailing prior to or at the commencement of the endeavor, but must include all of the circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of the crime." (Id. at p. 532.)
In People v. Montes (1999) 74 Cal.App.4th 1050 (Montes), the court applied Prettyman in considering whether attempted murder could be a natural and probable consequence of the misdemeanor offenses of simple assault and breach of the peace for fighting in public. The Montes court described the relevant circumstances of the case as follows:
"[The circumstances presented in this case] arose in the context of an ongoing rivalry between OKM and VPL during which the two gangs acted violently toward each other. This feud spilled over on the night in question when Montes and his gang confronted Garcia in the parking lot. From the start, the confrontation was punctuated by threats and weaponry. And when it was clear the chain-wielding Montes and his gang were too much for Garcia, Flores shouted something about a gun, which in turn prompted Cuevas to obtain a firearm and shoot Garcia." (Montes, supra, 74 Cal.App.4th at p. 1055.)
The Montes court concluded, "Under the circumstances presented in this case, the targeted offenses of simple assault and breach of the peace for fighting in public were not trivial." (Montes, supra, 74 Cal.App.4th at p. 1055.) The Montes court further held, "There can be little question that the target offenses of assault and breach of the peace were closely connected to the shooting." (Ibid.)
While Betancourt relies on People v. Butts (1965) 236 Cal.App.2d 817 (Butts), for the proposition that the "[k]illing of a victim is not a natural and probable consequence of an assault when the defendant did not know that his confederate would use a deadly weapon," the Montes court noted that Butts can no longer be relied upon for this point. (Montes, supra, 74 Cal.App.4th at p. 1056 ["To the extent Butts requires one accused of aiding and abetting to know of and encourage the perpetrators intended use of a weapon, it is out of step with Supreme Court authority"]; see also People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5 (Godinez) ["although evidence indicating whether the defendant did or did not know a weapon was present provides grist for argument to the jury on the issue of foreseeability of a homicide, it is not a necessary prerequisite," and stating, "our review of Butts reveals it is at best unsupported by any law, and at worst inconsistent with subsequent authority"].) Similarly in People v. Gonzales (2001) 87 Cal.App.4th 1, 7 (Gonzales), the court rejected the defendants argument that the evidence was insufficient to sustain his "conviction for aiding and abetting the murder of [victim] on the natural and probable consequences theory, because there was no evidence that [defendant] knew [shooter] was armed or intended to use a firearm in the fistfight."
The Montes court noted that "Butts is also more than three decades old, a remnant of a different social era, when street fighters commonly relied on fists alone to settle disputes. . . . [and that] the nature of modern gang warfare is quite different." (Montes, supra, 74 Cal.App.4th at p. 1056.) Courts in other cases have also recognized that a defendants gang membership is among the circumstances to be considered in determining whether a charged offense is a natural and probable consequence of a target offense. (E.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 (Olguin ).)
b. First degree murder can be a natural and probable consequence of simple battery
There is no authority that supports the proposition that, as a matter of law, a target offense of misdemeanor battery is too trivial an offense to support a murder conviction as a natural and probable consequence. The facts of this case amply demonstrate circumstances under which there was sufficient evidence for the jury to conclude that first degree murder was in fact a natural and probable consequence of a misdemeanor battery. Betancourt, who was a gang member, committed two batteries with a fellow gang member minutes before the shooting in the course of attempting to collect a debt. The jury could have inferred from the evidence presented that Betancourt knew that Sanchez was armed with a firearm during the batteries. (See Godinez, supra, 2 Cal.App.4th at p. 501, fn. 5 [whether defendant knows confederate is armed is relevant to jurys determination of application of natural and probable consequences doctrine].) Further, the battery and the murder were "closely connected" both in time and place. (Ibid.) Under these circumstances, the battery of Joseph was not, as a matter of law, too "trivial" an offense to support a first degree murder conviction pursuant to the natural and probable consequences doctrine. (Montes, supra, 74 Cal.App.4th at p. 1055.)
5. The doctrine of invited error precludes Betancourt from prevailing on his claim that the trial court erred in instructing the jury pursuant to CALJIC No. 5.17; in any event the trial court did not err
Betancourt claims that the trial court erred in instructing the jury pursuant to CALJIC No. 5.17 regarding unreasonable self-defense, "without further clarifying what constitutes `unlawful or `wrongful conduct or refraining from using those terms in the instruction."
Both the People and the defendants requested that the trial court instruct the jury pursuant to CALJIC No. 5.17. During a jury instruction conference, the trial court informed the parties that it intended to instruct the jury pursuant to CALJIC No. 5.17. Neither defendant registered an objection to the instruction or requested that the instruction be modified.
The trial court instructed the jury pursuant to a modified version of CALJIC No. 5.17, as follows:
"A person who kills another person in the actual but unreasonable belief in [the] necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts may not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter.
"As used in this instruction, an `imminent peril or danger means one that is apparent, present, immediate and must be instantly [dealt] with or must so appear at the time to the slayer.
"However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack or pursuit.
"This principle applies to a person who kills in purported self-defense [or] purported defense of another person." (Italics added.)
Betancourt claims that this instruction was misleading because the italicized language is vague and overbroad.
"It is well settled the doctrine of invited error precludes the defendant from complaining about an instruction given at his own request." (People v. Ojeda-Parra (1992) 7 Cal.App.4th 46, 51.) In this case, Betancourt requested that the trial court instruct the jury pursuant to CALJIC No. 5.17, and neither registered any objection nor requested any modification of the instruction in the trial court. The doctrine of invited error thus precludes his claim on appeal.
Even assuming Betancourt is not precluded from raising this claim, we reject it on the merits. Reviewing Betancourts claim de novo (see Posey, supra, 32 Cal.4th at p. 218), we note that the language in CALJIC No. 5.17 is derived from In re Christian S. (1994) 7 Cal.4th 768, 773, footnote 1, and is a correct statement of the law. (See People v. Hardin (2000) 85 Cal.App.4th 625, 634 [stating CALJIC No. 5.17 is "legally correct"].) We reject Betancourts argument that the trial court had a sua sponte duty to further define "unlawful or wrongful" because the phrase purportedly has a technical meaning that is peculiar to the law. Betancourt does not cite any authority that supports this proposition. Accordingly, we conclude that the trial court did not err in failing to instruct the jury, sua sponte, as to the meaning of the term "unlawful or wrongful conduct."
Finally, given the facts of this case, we reject Betancourts argument that the jurors might have been misled by allegedly "overbroad" language in CALJIC No. 5.17. Specifically, Betancourt argues that the scope of the meaning of "unlawful or wrongful conduct" in CALJIC No. 5.17 is implicitly limited in that the conduct at issue must pose a threat of physical harm to a third party. Betancourt maintains that without a proper definition of the conduct to which CALJIC No. 5.17 refers, the jury was left with the impression that the wrongful conduct referred to in CALJIC No. 5.17 could be something that did not threaten physical harm. There is nothing in the record of this case that suggests that the jury could have rejected Betancourts imperfect self-defense claim based on a belief that he had engaged in wrongful conduct that did not pose a threat of physical harm to a third party.
6. There is sufficient evidence to support Betancourts conviction for battery of Joseph
Betancourt claims that there is insufficient evidence to support his conviction for battery of Joseph, and that his conviction for battery in count 3 must therefore be reversed. Betancourt also claims that his conviction for murder in count 1 must be reversed because the conviction was based on the theory that the murder was a natural and probable consequence of the battery of Joseph, for which Betancourt maintains there is insufficient evidence. We apply the sufficiency of the evidence standard of review discussed in part III.A.1.a., ante.
Durocher testified that just before the murder, Joseph attempted to break up a fight between her and Villalobos. Durocher explained that Joseph was not acting aggressively in attempting to break up the fight. Rather, Joseph attempted to prevent Durocher from beating Villalobos by pushing Durocher away from Villalobos. Durocher also testified that when Betancourt and Sanchez approached the scene of the fight, Joseph acted in a conciliatory manner.
Durocher testified that at this point, she continued fighting with Villalobos. Shortly thereafter, Durocher looked in the direction of Joseph. Durocher testified:
"[Durocher]: I seen Joseph, like, standing up, but his upper body was bent forward, and I just remember seeing all three of them [Joseph, Sanchez, and Betancourt] — all of their arms were flying, like — they were all swinging on each other. In other words, they were jumping Joe."
"[Prosecutor]: Two on one?"
"[Durocher]: Right."
"[Prosecutor]: And you say Joe is — his upper body is leaning forward, so hes bent forward at the waist?"
"[Durocher]: Yes, with his face facing toward the ground, you know."
"[Prosecutor]: Okay."
"[Durocher]: Like he couldnt even —"
"[Prosecutor]: With his face facing the ground, and what — what are his arms doing?"
"[Durocher]: I dont know if he was swinging or trying to block hits, — because I didnt sit there and stare at the situation, you know. I just kind of glanced to see."
"[Prosecutor]: But you see him bent over, and his arms are, what, flailing around?"
"[Durocher]: Yes."
"[Prosecutor]: You cant tell whether hes punching or trying to block punches?"
"[Durocher]: Right."
"[Prosecutor]: So you could see that the other two guys are doing what?"
"[Durocher]: Hitting him."
"[Prosecutor]: They are both hitting him? Yes?"
"[Durocher]: Yes."
On cross-examination, Durocher agreed with Sanchezs counsel that she did not know whether the three men had "fought at all," or how any altercation between Joseph, Sanchez and Betancourt started. Durocher did say that she saw Joseph "trying to defend himself," because "there was two guys at the side of him. . . ."
While Durocher was equivocal in her description of the fight involving Joseph, Sanchez and Betancourt, she testified that Joseph was conciliatory toward Sanchez and Betancourt just prior to the fight, that Sanchez and Betancourt had "jump[ed] Joseph," that Joseph was "trying to defend" himself, and that both Sanchez and Betancourt had hit Joseph. Durochers testimony, together with the other evidence regarding the defendants actions that evening, including the battery they perpetrated on Moreno just minutes before the fight with Joseph, constitute sufficient evidence from which the jury could have determined that Betancourt committed a battery on Joseph.
7. Any error the trial court committed in allowing the Peoples gang expert to express an opinion that the murder was committed for the benefit of North Side Colton was harmless
Betancourt claims that the trial court erred by allowing the Peoples gang expert, Officer Vogelsang, to express his opinion that Sanchez and Betancourt murdered Albert for the benefit of North Side Colton. "`"As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]" [Citation.]" (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 (Garcia).)
a. Factual and procedural background
Officer Vogelsang provided expert testimony concerning a number of topics pertaining to gangs, including gang behavior in general, the defendants membership in the North Side Colton gang, and the characteristics and activities of the North Side Colton gang. With respect to gang behavior, Officer Vogelsang explained that gang members often commit violent crimes together in order to benefit their gang.
With respect to the murder of Albert, Officer Vogelsang testified as follows:
"[Prosecutor]: Do you have an opinion — first of all, have you reviewed police reports pertaining to the killing of Albert Flores?"
"[Officer Vogelsang]: Yes."
"[Prosecutor]: Do you have an opinion regarding whether that murder was committed for the benefit of [the] North Side Colton Gang?"
"[Betancourts counsel]: Im going to object as improper opinions. Thats [up] to the jury to decide that."
"The Court: Overruled."
"[Officer Vogelsang]: Yes."
"[Prosecutor]: Whats that opinion?"
"[Officer Vogelsang]: Again, the fear and intimidation of rival gang member, to let the other gang member know that North Side Colton was collecting a debt."
b. Governing law
It is well established that expert testimony is admissible regarding gangs and gang behavior:
"In general, this court and the Courts of Appeal have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case. `Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.] The subject matter of the culture and habits of criminal street gangs . . . meets this criterion. [Citations.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 944.)
In Garcia, supra, 153 Cal.App.4th at pp. 1512-1513, the court noted that courts in a number of cases have held that a gang expert may testify regarding whether a crime was committed to benefit a gang:
"[A]n expert may properly testify about . . . `whether and how a crime was committed to benefit or promote a gang. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-658, (Killebrew ); People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [`Expert testimony repeatedly has been offered to show . . . "whether and how a crime was committed to benefit or promote a gang"]; People v. Valdez [(1997) 58 Cal.App.4th 494, 507-509] [holding expert opinion concerning whether the defendant acted for the benefit of a gang was admissible under the circumstances of the case].)"
The Garcia court noted that the proper method by which to elicit a gang experts opinion regarding whether a crime was committed for the benefit of a gang is through the use of hypothetical questions based on evidence in the case. (Garcia, supra, 153 Cal.App.4th at p. 1513; see also People v. Gardeley (1996) 14 Cal.4th 605, 619 (Gardeley) [holding it proper for prosecutor to give gang expert "a `hypothetical based on the facts of the assault in this case on Edward Bruno by three Family Crip members, [and] ask[ing] [gang expert] if in his expert opinion an attack as described would be "gang-related activity"].) In Garcia, the gang expert (Zurborg) testified on this issue as follows:
"Q. Now, let me give you a hypothetical. [¶] Lets say that you have an individual, who in 1998 was contacted by the police, because they were in La Colonia territory with a gun. [¶] You have, also, that year committing graffiti in the La Colonia area where theyre writing Devious Hoodlums gang graffiti in La Colonia territory. [¶] You have field interviews, contacts in 1999 and 2000, where the person admits or claims that theyre associating with Devious Hoodlums. [¶] In the year 2000, the individual is a victim of a shooting thats believed to be gang related. And the person, also, claims to be Devious Hoodlums. [¶] And then in 2004 that person is stopped, has a gun in their possession, thats hidden within the car in the fuse box thats loaded — and at the time there is ongoing investigations and knowledge of street activity between Devious Hoodlums and La Colonia. [¶] Based on those facts, do you have an opinion as to whether this particular offense was committed for the benefit of, or in association with the criminal street gang?
"A. Yes, I do.
"Q. And what is that opinion?
"A. That it is for the benefit and direction of, and association for the Devious Hoodlums gang. [¶] The information that he gave with the information — . . . the updated information, his knowledge of all the ongoing activity of the shootings that are going on — its my opinion that he is an active participant of Devious Hoodlums; and the possession of the firearm is to benefit the gang.
"Q. Okay. Now, assuming . . . the same facts, do you have an opinion as to whether or not under those circumstances that the offense of carrying a loaded firearm in a vehicle was done to promote, further, or assist criminal conduct by the Devious Hoodlums gang members?
"A. That is correct.
"Q. Okay.
"A. And it is for the same reasons, for the knowledge that he has, the gang members that know he is in possession of that gang — [¶] . . . [¶] [a]nd with the knowledge that the gang members have of him having the possession — the actual gang members giving him the gun, shows that they know its for the — its going to be used against rival gang members, or for the protection of the Devious Hoodlums gang." (Garcia, supra, 153 Cal.App.4th at pp. 1505-1506.)
On appeal, Garcia claimed that the trial court had erred by allowing Zurborg to testify regarding the ultimate issue in the case, by stating his opinion that Garcia had committed the crime for the benefit of a gang. The Garcia court rejected this claim, reasoning: "[I]n response to hypothetical questions, Zurborg testified the crime, under such circumstances, would be committed to benefit a criminal street gang. The trial court did not abuse its discretion in permitting Zurborgs testimony, even though the topics as to which he rendered an opinion based on responses to hypothetical questions were, in fact, the ultimate issues of the case." (Garcia, supra, 153 Cal.App.4th at pp. 1513-1514; accord Evid. Code, § 805 ["Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact"].)
c. Any error in allowing the gang expert to testify as to the ultimate issue was harmless under any standard of prejudice
We assume for purposes of this decision that because the prosecutor did not pose his question regarding whether the murder was committed for the benefit of North Side Colton as a hypothetical question, the trial court erred in allowing Officer Vogelsang to offer his opinion that Sanchez and Betancourt murdered Albert for the benefit of the gang. However, we conclude that the error was not prejudicial under any standard of prejudice, as to either defendant. To begin with, the trial court properly admitted Officer Vogelsangs testimony concerning the behavior of gang members in general, and Betancourts and Sanchezs association with North Side Colton. The jury could properly have relied on the properly admitted testimony Officer Vogelsang provided to support his opinion that the murder was committed for the benefit of a gang.
We include Sanchez in our harmless error analysis, in light of his joinder in all of Betancourts claims on appeal.
It is clear from Garcia and Gardeley that it would have been proper for the prosecutor in this case to have presented Officer Vogelsang with the evidence pertaining to the circumstances of Alberts murder in the form of a hypothetical question, and to have asked Officer Vogelsang whether, in his opinion, a murder committed under these circumstances would have been committed for the benefit of the gang. While asking Vogelsang to express his opinion in response to a hypothetical question would have reinforced to the jury that it was ultimately for the jury to decide whether the crime was committed for the benefit of the gang, the trial court instructed the jury pursuant to CALJIC No. 2.80 that it was not bound by any experts opinion and that it was the jurors duty to weigh the strengths and weaknesses of any such opinion.
The court instructed the jury pursuant to CALJIC No. 2.80 in relevant part as follows: "An opinion is only as good as the facts and reasons on which it [is] based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it [is] based. [¶] You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable."
In view of the considerable quantity of admissible evidence on which Vogelsang based his opinion, and the courts instructions regarding how the jurors were to evaluate expert testimony, we are satisfied beyond a reasonable doubt that if the prosecutor in this case had posed his question regarding whether the murder was committed for the benefit of a gang as a hypothetical question, as in Garcia, the jury would not have reached a result more favorable to either defendant. Accordingly, we conclude that the trial court did not commit reversible error in allowing the Peoples gang expert to express an opinion that the murder was committed for the benefit of the defendants gang.
8. Betancourts sentence does not violate the ban against cruel or unusual punishment
Betancourt claims that his sentence of 50 years to life violates the federal and state constitutional guarantees against cruel and/or unusual punishment. "`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.)
a. Governing law
Article I, section 17 of the California Constitution provides: "Cruel or unusual punishment may not be inflicted. . . ."
In determining whether a sentence violates the state constitutional prohibition on cruel or unusual punishment, a court engages in an intracase proportionality review:
"`[W]e 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 defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendants 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 Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments." It applies to the states via the Fourteenth Amendment and "`contains a "narrow proportionality principle" that "applies to noncapital sentences."" (Ewing v. California (2003) 538 U.S. 11, 20 (plur. opn. of OConnor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.) 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.)
Betancourt notes that a court may determine that a sentence constitutes cruel or unusual punishment without employing intercase proportionality techniques. With one exception, discussed below, Betancourt restricts his analysis, as do we, to a consideration of the nature of the offense and the offender.
In Gonzales, supra, 87 Cal.App.4th 1, the 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 in part:
"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.)
b. Betancourts sentence does not constitute cruel or unusual punishment
Betancourt claims that the fact that he is 23 years old, and that his prior criminal record consists of only nonviolent offenses, including a juvenile adjudication for second degree burglary, and adult convictions for evading the police, receiving stolen property, and being under the influence, constitute offender characteristics that support the conclusion that his sentence is cruel or unusual. We disagree. While Betancourts age might be considered to be slightly mitigating, his prior criminal record is not. Further, in light of Betancourts status a member of a criminal street gang, we cannot say that an examination of the "nature of the offender" supports the conclusion that Betancourts sentence is cruel or unusual.
Betancourt claims that an examination of the totality of the circumstances also supports the conclusion that his sentence is cruel or unusual. Again, we disagree. Betancourt engaged in two batteries within a short time period while attempting to collect a debt with a fellow gang member whom Betancourt knew was armed. The punishment is not grossly disproportional to Betancourts individual culpability. (See Gonzales, supra, 87 Cal.App.4th at p. 19.)
Finally, we reject Betancourts intercase proportionality argument that, under the facts of this case, his sentence is unconstitutional because he is being punished as severely as the direct perpetrator of the offense. Assuming that there might be some case in which the natural and probable consequences doctrine resulted in punishment that was cruel or unusual, this is not such a case, for the reasons stated above.
9. A defendant who is found guilty as an aider and abettor to an offense under the natural and probable consequences doctrine is a principal to the offense as a matter of law
Betancourt claims that the trial court erred in imposing a sentence enhancement pursuant to section 12022.53, subdivision (e), contending that a defendant who is found guilty of an offense under the natural and probable consequences doctrine is not necessarily a "principal" to that offense for purposes of this subdivision. Betancourt argues that this court must reverse the section 12022.53, subdivision (e) sentence enhancement because the jury never found him to be a principal to the murder, and the jury instruction that defined the sentence enhancement did not inform the jury that it was required to determine whether was Betancourt was a principal to the murder. This claim raises a question of law, which we review de novo. (E.g., Butler, supra, 31 Cal.4th at p. 1127.)
a. Governing law
i. The sentence enhancement at issue
At the time of the offenses, former section 12022.53 provided in relevant part:
Section 12022.53, subdivision (e) currently provides in relevant part: "(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)."
All references to section 12022.53, subdivision (e) are to the version of the statute that was in effect at the time of the offenses. In any event, Betancourt does not contend that the change in the wording of the statute has any effect on his claim. (See also Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2173 (2001-2002 Reg. Sess.) as amended Jun. 4, 2002, p. H ["This bill rewrites this provision [section 12022.53, subdivision (e)] without changing its substance"].)
"(e)(1) The enhancements specified in this section shall apply to any person charged as a principal in the commission of an offense that includes an allegation pursuant to this section when a violation of both this section and subdivision (b) of Section 186.22 are pled and proved." (Italics added.)
ii. "Principals" and "accessories" under California criminal law
Section 30 provides:
"CLASSIFICATION OF PARTIES TO CRIME. The parties to crimes are classified as: [¶]1. Principals; and, [¶] 2. Accessories."
Section 31 provides in relevant part:
"WHO ARE PRINCIPALS. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed."
Section 32 defines an "accessory" to a crime as follows:
"Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."
Section 971 provides:
"The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal."
iii. Criminal liability pursuant to the natural and probable consequences doctrine
In People v. Vasco (2005) 131 Cal.App.4th 137, the court outlined the elements a trier of fact must find in order to find a defendant guilty pursuant to the natural and probable consequences doctrine:
"The elements of aider and abettor liability for murder on the natural and probable consequences theory are the following: `the trier of fact must find that the defendant, 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 a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendants confederate committed an offense other than the target crime; [fn. omitted] and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. [Citation.] The issue `is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]" (Id. at p. 161, italics omitted.)
As with an aider and abettor, a perpetrator of a target offense is also liable for the natural and probable consequences of that offense. (Olguin, supra, 31 Cal.App.4th at p. 1376 ["a perpetrator of an assault and an aider and abettor are equally liable for the natural and foreseeable consequences of their crime"].) The Olguin court reasoned:
"Both the perpetrator and the aider and abettor are principals, and all principals are liable for the natural and reasonably foreseeable consequences of their crimes. Penal Code section 971 provides that all persons concerned in the commission of a crime, `shall hereafter be prosecuted, tried and punished as principals . . . . `Reasonably construed, this section expresses a legislative intent to abolish the distinctions made at common law as to the various types of participants in the commission of a crime and to make all of them subject to the same procedural and substantive limitations. [Citation.]" (Ibid.)
b. The trial court properly imposed the section 12022.53, subdivision (e) enhancement because the jurys finding Betancourt guilty of murder pursuant to the natural and probable consequences doctrine makes him a "principal" to the murder for purposes of section 12022.53, subdivision (e), as a matter of law
Under California law, the parties to a crime are classified as either principals or accessories. (§ 30.) Therefore, under section 30, "A defendant in a criminal action . . . is convicted as a principal or accessory or not at all." (People v. Talbott (1944) 65 Cal.App.2d 654, 660.)
A defendant who is guilty of an offense by way of the natural and probable consequences doctrine is clearly not an accessory to the offense. Such a defendants guilt is not predicated on acts perpetrated "after a felony has been committed." (§ 32.) Rather, a defendants criminal liability for an offense by way of the natural and probable consequences doctrine is premised on the notion that individuals "should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion. [Citation.]" (Prettyman, supra, 14 Cal.4th at p. 260, italics added.) A defendant who is guilty of an offense pursuant to the natural and probable consequences doctrine, whether as a perpetrator or aider and abettor of the "target offense" (People v. Vasco, supra, 131 Cal.App.4th at p. 161), is "concerned in the commission" of the charged offense. (§ 31.) Therefore, such a defendant is a principal to the charged offense as a matter of law. (See Woods, supra, 8 Cal.App.4th at p. 1588) ["the apparent intent of section 31 is to make the aider and abettor a principal in any crime committed by the perpetrator which is a reasonably foreseeable consequence of the criminal act originally contemplated," italics altered].) Such a conclusion is also fully consistent with section 971, and the abolition of "`the distinctions made at common law as to the various types of participants in the commission of a crime . . . . [Citation.]" (Olguin, supra, 31 Cal.App.4th at p. 1376.)
Betancourt argues that People v. Garcia (2002) 28 Cal.4th 1166, supports his argument. In People v. Garcia, supra, 28 Cal.4th 1166, the Supreme Court considered the scope of vicarious liability pursuant to section 12022.53, subdivisions (d) and (e) where the shooter is not convicted of an offense. In the course of concluding that a defendant who is not the shooter may be subject to a section 12022.53 firearm enhancement notwithstanding the lack of a conviction for an offense, the Supreme Court stated:
"[I]n order to find an aider and abettor — who is not the shooter — liable under section 12022.53, subdivision (d), the prosecution must plead and prove that (1) a principal committed an offense enumerated in section 12022.53, subdivision (a); (2) a principal intentionally and personally discharged a firearm and proximately caused great bodily injury or death to any person other than an accomplice 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 (§§ 186.22, subd. (b)(1) & (4), 12022.53, subd. (e)(1).)" (People v. Garcia, supra, 28 Cal.4th at p. 1174, italics added.)
Murder is among the offenses listed in section 12022.53, subdivision (a).
Betancourt claims that the italicized language supports the conclusion that there "are some categories of aiders and abettors who are not `principals." We do not read People v. Garcia, supra, 28 Cal.4th at page 1174, as stating that there are some types of defendants who, although having aided and abetted a crime, are not principals to that crime. Rather, we read People v. Garcia, supra, 28 Cal.4th at page 1174, as stating that, in order to be subject to a firearm enhancement pursuant to section 12022.53, subdivision (e), the nonshooter aider and abettor must be a principal to the qualifying offense committed by the shooter principal, as opposed to having merely having aided and abetted some other nonqualifying offense. In this case, the jury found Betancourt guilty of murder as an aider and abettor pursuant to the natural and probable consequences doctrine. Therefore, Betancourt (the nonshooter aider and abettor) was a principal to a qualifying offense (murder) committed by Sanchez (the shooter principal).
Also unpersuasive is Sanchezs reliance on the Supreme Courts decision in People v. Montoya (1994) 7 Cal.4th 1027 (Montoya). In Montoya, in considering the duration of the crime of burglary for purposes of determining the scope of aider and abettor liability, the court stated, "[W]e observe . . . that the duration of the offense of burglary, as defined for the purpose of assigning aider and abettor liability, need not and should not be identical to the definition pertinent to felony-murder liability or to other `ancillary consequences of burglary." (Id. at p. 1045, fn. 9.) Betancourt argues that Montoya supports the conclusion that his liability for the murder was an "ancillary consequence" of his participation in the battery on Joseph. Even assuming Betancourts liability for the murder under the natural and probable consequences doctrine could be described as an "ancillary consequence" of the battery, Betancourt was nevertheless "concerned in the commission of a crime" (§ 31), and therefore, a principal to the crime. In sum, neither Montoya nor People v. Garcia, supra, 28 Cal.4th 1166 suggest that a defendant may be guilty of an offense by way of the natural and probable consequences doctrine without also being a principal to that offense.
In this case, the jury found Betancourt guilty of murder as an aider and abettor pursuant to the natural and probable consequences doctrine. Therefore, Betancourt was a principal to the murder as a matter of law.
We also reject Betancourts argument that we must reverse the section 12022.53, subdivision (e) sentence enhancement because the jury was never instructed that it was required to consider whether Betancourt was a principal to the underlying offense. For the reasons stated above, the jurys guilty verdict on the offense of murder in count 1 makes him a principal to that offense as a matter of law. Thus, the jury was not required to make any additional findings on this issue and, therefore, no additional instructions were required or appropriate.
The verdict form indicates that the jury did find, with respect to count 1, that Betancourt "was a principal in the commission of a gang crime where a principal discharged a firearm causing death with the meaning of Penal Code section 12022.53 [, subdivision] (e)." (Italics added.) For the reasons stated in the text, the jurys determination that Betancourt was a principal to the murder in count 1 followed as a matter of law from the jurys verdict finding Betancourt guilty of the murder.
Accordingly, we conclude the trial court did not err in imposing a sentence enhancement pursuant to section 12022.53, subdivision (e).
D. The cumulative error doctrine does not require reversal of the judgment
Both defendants claim that, to the extent this court concludes no individual error merits reversal, the cumulative error doctrine requires reversal of the judgment.
"Under the `cumulative error doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
We have concluded that most of the defendants claims of error are without merit. We further conclude that any errors committed by the trial court, whether considered individually or together, do not require reversal as to either defendant. Accordingly, we conclude that there was no cumulative error that requires reversal of the judgment.
E. The defendants sentences on the section 186.22 enhancements must be stricken in accordance with the Peoples concession
With respect to Sanchez, on count 1, the trial court imposed and stayed a sentence of 15-years-to life on the section 186.22, subdivision (b) enhancement. With respect to Betancourt, on count 1, the trial court imposed and stayed a sentence of 10 years on the section 186.22, subdivision (b) enhancement. The People concede that both sentences are unauthorized pursuant to People v. Lopez (2005) 34 Cal.4th 1002. We agree with the concession and order the sentences on both enhancements stricken.
IV.
DISPOSITION
With respect to Sanchez, on count 1, the 15-year-to-life sentence pursuant to section 186.22 is ordered stricken. With respect to Betancourt, on count 1, the 10-year sentence pursuant to section 186.22 is ordered stricken. The trial court is instructed to prepare an amended abstract of judgment reflecting these actions and to deliver the abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur:
McCONNELL, P. J.
HUFFMAN, J.