Opinion
G052479
02-28-2018
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO FLORES VASQUEZ, Defendant and Appellant.
Thea Greenhalgh and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Alastair J. Agcaoili and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on February 28, 2018, be modified as follows:
1. On page 3, delete footnote two:
We are relating Vasquez's trial testimony without repeatedly using qualifiers such as "Vasquez testified" or "according to Vasquez." We realize that this unqualified summary is only Vasquez's "version of events, which must be viewed in light of the jury's . . . verdict." (See People v. Mehserle (2012) 206 Cal.App.4th 1125, 1134, fn. 4.)
2. On page 3, replace footnote two:
We are relating Garcia's trial testimony without repeatedly using qualifiers such as "Garcia testified" or "according to Garcia." We realize that this unqualified summary is only Garcia's "version of events, which must be viewed in light of the jury's . . . verdict." (See People v. Mehserle (2012) 206 Cal.App.4th 1125, 1134, fn. 4.)
3. On page 16, add footnote 4, following the People v. Chiu (2014) 59 Cal.4th 155, 167, citation:
The Attorney General argued in a petition for rehearing that: "This court applied the wrong legal standard in ordering reversal." The Attorney General relies on People v. Guiton (1993) 4 Cal.4th 1116 (Guiton). But that case is distinguishable.
In Guiton, a jury convicted defendant of selling or transporting cocaine. (Guiton, supra, 4 Cal.4th at p. 1119.) The California Supreme Court held that the evidence was insufficient on the selling theory, but was sufficient on the transportation theory. The court reasoned that "if there are two possible grounds for the jury's verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground." (Id. at p. 1127.) The court held that: "If the inadequacy of proof is purely factual . . . reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual . . . the . . . rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Id. at p. 1129.) The court found the error to be factual (inadequate evidence of sales) rather than legal (e.g., an improper legal theory); thus, the error did not require reversal. (Id. at p. 1131.)
In Guiton the jury was presented with two theories of guilt, both of which were legally proper, but one of them was factually insufficient. Here, unlike Guiton, the jury was presented with two theories of guilt, but one of them was legally improper (the natural and probable consequence theory). Thus, Guiton does not apply.
This modification does not change the judgment.
The petition for rehearing is DENIED.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14HF3084) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Reversed. Thea Greenhalgh and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Alastair J. Agcaoili and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Rodrigo Gabriel Garcia and Ignacio Flores Vasquez of attempted murder. Garcia was the direct perpetrator of an assault with a knife; Vasquez was one of two alleged aiders and abettors. In an earlier opinion, we reversed Garcia's conviction because the trial court failed to provide the jurors with an imperfect self-defense instruction. (People v. Garcia (May 18, 2017, G052567) [nonpub. opn.].)
On our own motion, we take judicial notice of our prior unpublished opinion. Citation of an unpublished opinion is permitted "'to explain the factual background of the case and not as legal authority.'" (The Utility Reform Network v. Public Utilities Com. (2014) 223 Cal.App.4th 945, 951, fn. 3; Cal. Rules of Court, rule 8.1115(b)(1).)
In this appeal, Vasquez argues there was insufficient evidence to find him guilty of attempted murder, the pattern jury instruction regarding a defendant's flight from the scene of a crime violates due process, and the trial court erred by failing to instruct the jury as to the defense of imperfect self-defense.
We find sufficient evidence to sustain Vasquez's conviction. We also hold that the flight instruction does not violate due process. However, just as in Garcia's appeal, we reverse Vasquez's attempted murder conviction because the trial court failed to instruct the jury on imperfect self-defense.
I
FACTS AND PROCEDURAL BACKGROUND
On December 2, 2014, at close to 1:00 a.m., Jose Top was at Hennessey's restaurant in Dana Point. Top called his friend and neighbor Javier Ortiz to come and get him. Top had just been in a fight. Ortiz lived near a Circle K store, which is about three blocks away from Hennessey's.
Ortiz and Gilberto Cruz walked to Hennessey's and met up with Top, who was standing outside. As Top, Ortiz, and Cruz walked back from Hennessey's towards the Circle K store, Cruz sensed that Top was afraid that someone was going to do something to him; the group was walking very quickly and Top repeatedly turned around and looked backwards.
When the group got to the Circle K store, Cruz went inside, while Top and Ortiz waited outside, in an alley behind the store. Vasquez, Garcia, and Alejandro Sanchez entered the alley. Vasquez and Garcia walked towards Ortiz. Vasquez said to Garcia, "It's him. It's him." Garcia responded, "Are you sure?" Garcia then pulled out a knife and repeatedly stabbed Ortiz, causing severe injuries to his torso and face; Vasquez moved behind Ortiz and punched him in the back.
When Cruz came out of the Circle K and entered the alley, he saw that Garcia had a knife and was stabbing Ortiz, who was lying on the ground. Ortiz was holding a belt above his head and was trying to defend himself. Vasquez and Sanchez were punching Top. As Cruz moved closer to where the stabbing was occurring, Vasquez, Garcia, and Sanchez all ran away. Paramedics arrived and took Ortiz to the emergency room.
Later that day, police interviewed Vasquez; afterwards, he sent several text messages to Sanchez. Vasquez texted Sanchez: "The only thing they asked me is if we know each other, and I said yes." Followed by: "And if I was drinking with you say yes until about 12:00." And then: "Or 1:00." Vasquez texted Sanchez: "They are going to ask you many questions." Followed by: "But do not give in or but do not give up."
Garcia's Testimony
On December 2, 2014, Vasquez began drinking beer outside of his home with Top, Vasquez, and Sanchez. At about 11:30 p.m., Vasquez and Top got into an argument that turned into a physical fight. Garcia stopped the fight and told Top that he had to leave.
We are relating Vasquez's trial testimony without repeatedly using qualifiers such as "Vasquez testified" or "according to Vasquez." We realize that this unqualified summary is only Vasquez's "version of events, which must be viewed in light of the jury's . . . verdict." (See People v. Mehserle (2012) 206 Cal.App.4th 1125, 1134, fn. 4.)
Later that evening, Garcia, Vasquez, and Sanchez walked to the Circle K store. When they got to the back of the store, they saw Top, who was with Ortiz. Top and Vasquez again got into a fight. When Ortiz tried to get involved, Garcia said, "Let them take care of their business." Ortiz said to Garcia, "What are you going to do, you f***ing little kid." Ortiz then took off his belt, which had a large buckle on it. Ortiz then started hitting and whipping Garcia with the belt on his back, shoulder, and arm. As Garcia was backing up he tripped and fell on the ground. Ortiz then started hitting Garcia in the head with the belt.
Garcia pulled a pocketknife, which he used for his work, out of his work clothes. Garcia got up off the ground, showed Ortiz the knife and told him to back away. Ortiz did not back away and kept hitting Garcia with the belt; Garcia now feared for his life. Garcia then started jabbing Ortiz with the knife as he tried to avoid Ortiz's blows with the belt. Ortiz eventually stumbled back, dropped the belt, and fell to the ground.
Trial Court Proceedings
The prosecution filed an information charging Vasquez, Garcia, and Sanchez with attempted premeditated murder. (Pen. Code, §§ 664, subd. (a), 187, subd. (a).) The information also alleged that Garcia personally used a knife and personally inflicted great bodily injury (GBI). The prosecution also charged the defendants with dissuading a witness (§ 136.1, subd. (b)(1)), but that charge was later dismissed on the prosecution's motion. In a joint jury trial of Vasquez and Garcia, the trial court instructed the jury on self-defense, but not on imperfect self-defense.
Further undesignated statutory references will be to the Penal Code.
The jury found Vasquez and Garcia guilty of attempted murder without premeditation. The jury also found Garcia's weapon and GBI enhancements to be true. The trial court sentenced Garcia to an aggregate 13-year prison term. The court sentenced Vasquez to a five-year prison term, suspended execution of the sentence, and granted him probation for five years. This court reversed Garcia's judgment in an unpublished opinion. We held that the trial court erred by not instructing the jury on imperfect self-defense. (People v. Garcia, supra, G052567.) The prosecution later dismissed the case as to Sanchez.
II
DISCUSSION
Vasquez argues: (A) there was insufficient evidence to support his convictions; (B) the pattern jury instruction concerning a defendant's flight violates due process (CALCRIM No. 372); and (C) the trial court erred by failing to instruct the jury as to imperfect self-defense.
We shall address each contention in turn. A. Insufficiency of the Evidence
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine '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.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.)
"'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamuido (2008) 43 Cal.4th 327, 357.)
Generally, a defendant may be convicted of a crime either as a perpetrator or as an aider and abettor. (§ 31.) "If the defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor." (People v. Perez (2005) 35 Cal.4th 1219, 1225.) An aider and abettor is a person who "knowingly and with criminal intent aids, promotes, encourages, or instigates by act or advice" a perpetrator of a crime. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.)
An aider and abettor's liability extends not only to crimes that were directly aided and abetted ("target" offenses), but also to any more serious crimes that were reasonably foreseeable ("nontarget" offenses). (People v. Laster (1997) 52 Cal.App.4th 1450, 1463.) Indirect aider and abettor liability for nontarget offenses is known as the "'"natural and probable consequences"'" doctrine. (People v. Montes (1999) 74 Cal.App.4th 1050, 1055 [in a gang confrontation, same construction an attempted murder was a natural and probable consequence of an assault or disturbing the peace].) Further, in a conspiracy, each coconspirator is liable for the acts of any of the others that are a reasonable and probable consequence of the conspiracy. (In re Hardy (2007) 41 Cal.4th 977, 1025-1026.)
Here, the jury was instructed as to three possible theories of Vasquez's liability for Garcia's actions as the perpetrator (the wielder of the knife): 1) direct aider and abettor liability; 2) the natural and probable consequences doctrine; and 3) a conspiracy theory of liability.
1. Direct Aider and Abettor Theory
Vasquez argues that there was no substantial evidence that he "shared any specific intent to murder Ortiz." We disagree.
A direct aider and abettor is a person who "'knowingly and with criminal intent aids, promotes, encourages'" a perpetrator of a crime. (People v. Beeman, supra, 35 Cal.3d at pp. 560-561.) With respect to attempted murder, a direct aider and abettor must share the perpetrator's intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 624.) An aider and abettor's intent can be inferred based on the person's actions before during and after the crime, as well as the surrounding circumstances of the crime itself. (People v. Smith (2005) 37 Cal.4th 733, 739-741.)
Here, there is circumstantial evidence that Vasquez participated in a coordinated attack against Ortiz behind the Circle K store. There was evidence that Top had been in a fight earlier that evening. As a result, Top was afraid and apparently called Ortiz for help in order to safely get back to his home. When Top and Ortiz were behind the Circle K store, Vasquez, Garcia, and Sanchez all entered the same area together at the same time. Just before Garcia stabbed Ortiz, Vasquez told Garcia, "It's him. It's him." Vasquez participated in the assault by punching Ortiz in the back. Vasquez also sent text messages to Sanchez after the assault about the police investigation: "do not give up."
Based on the apparent coordinated actions of Vasquez, Garcia, and Sanchez—before, during, and after the stabbing—it would have been reasonable for the jury to infer that Vasquez knew that Garcia was armed with a knife before the attack and that he shared Garcia's intent to kill Ortiz.
We reject Vasquez's assertion that any inference on the part of the jury concerning his intent to kill would have been "purely speculative." Although each witness's testimony differed to some extent, the evidence was largely consistent and the jury could reasonably deduce Vasquez's intent. (See People v. Edwards, supra, 57 Cal.4th at pp. 715-716.) Further, the cases Vasquez cites in his briefing in support of his arguments are factually distinguishable. For instance, in Lavine v. Superior Court of Los Angeles (1965) 238 Cal.App.2d 540, 542-544 (Lavine), the court found insufficient evidence where there was no evidence whatsoever that the alleged aiders and abettors ever assisted, advised, or encouraged the perpetrator of a robbery. But in this case, there was evidence that Vasquez directly aided Garcia by participating in the assault against Ortiz. Thus, Lavine, and the other similar cases cited by Vasquez are unpersuasive.
2. Natural and Probable Consequence Theory
Vasquez argues that: "No evidence was introduced that [he] had knowledge that of Garcia's alleged unlawful purpose or intended to encourage a fight that would reasonably result in attempted murder." We disagree.
An objective test is used in determining "whether a particular criminal act was a natural and probable consequence of another criminal act." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) "Consequently, the issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." (Ibid.) "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." (CALCRIM No. 402.)
In this case, the jury was instructed on the elements of the misdemeanor disturbing the peace charge: "To prove that defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully fought or challenged someone else to fight; [¶] AND [¶] 2. The defendant and another person were in a public place when the fight occurred or the challenge was made." The jury was also instructed that: "If you decide that defendant aided and abetted the crime of Disturbing the Peace and that Attempted Murder . . . was a natural and probable consequence of that crime, the defendant is guilty of Attempted Murder . . . ."
Here, the evidence showed that Vasquez aided and abetted Garcia in the fight behind the Circle K store (a public place). A jury could reasonably infer that Vasquez knew that Garcia was armed with a knife and that the attempted murder of Ortiz was a natural and probable consequence of the target crime that Vasquez aided and abetted (disturbing the peace). Thus, all of the elements of a natural and probable consequences theory were reasonably supported by substantial evidence.
Vasquez argues that since there were no gang allegations in this case, a jury could not reasonably conclude that an attempted murder was a reasonably foreseeable consequence of a disturbing the peace charge. Vasquez cites several cases involving criminal street gangs in support of his argument. (See, e.g., People v. Montes, supra, 74 Cal.App.4th at p. 1055 [in a gang case an attempted murder was a natural and probable consequence of an assault or disturbing the peace].) However, while the cases cited by Vasquez do involve criminal street gangs, this does not mean that there is a requirement of gang activity in order for the natural and probable consequence theory to apply. In each particular case, it is up to the trier of fact to determine if the "nontarget offense" is a natural and probable consequence of the "target offense." (See CALCRIM No. 402.) Here, under these facts, there is substantial evidence that the nontarget offense of attempted murder may have been a natural and probable consequence of the target offense of disturbing the peace, despite the fact that this is not a gang case.
3. Natural and Probable Consequences Theory (Conspiracy)
Vasquez argues that: "Insufficient evidence was admitted to show [he] aided and abetted the alleged uncharged conspiracy with Garcia and Sanchez to commit the target offense of disturbing the peace." We disagree.
The necessary elements of a criminal conspiracy are: 1) an agreement between two or more persons; 2) with the specific intent to commit a public offense; 3) with the further specific intent to commit that offense; and 4) an overt act committed by one or more of the parties for the purposes of accomplishing the object of the agreement or the conspiracy. (People v. Liu (1996) 46 Cal.App.4th 1119, 1128.) "The elements of conspiracy may be proven with circumstantial evidence, 'particularly when those circumstances are the defendant's carrying out the agreed-upon crime.' [Citations.] To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, 'a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.' [Citation.]" (People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1025.)
In this case, the trial court instructed that jury that the prosecution had presented evidence of an uncharged conspiracy to commit the crime of disturbing the peace. (§ 415, subd. (1).) The prosecution alleged several "overt acts" of the conspiracy including that: "(a) Defendant Vasquez or Alejandro Sanchez communicated with Defendant Garcia to seek his aid [¶] (b) Defendant Garcia armed himself with one or more knives [¶ (c) Defendants and Alejandro Sanchez left their location [¶] (d) Defendants and Alejandro Sanchez followed Jose Top [¶] (e) Defendants approached Victim Javier Ortiz together [¶] (f) Defendant Vasquez stated, 'That's him' in Spanish [¶] (g) Defendant Garcia stated, in response, 'you sure?' [¶] (h) Defendant Vasquez punched Victim Ortiz twice in the back [¶] (i) Defendant Vasquez and Alejandro Sanchez punched Jose Top [¶] (j) Defendant Garcia stabbed Victim Ortiz multiple times[.]" The instruction further told the jury: "To prove that defendant is guilty of [attempted murder], the People must prove that: [¶] 1. The defendant conspired to commit Disturbing the Peace; [¶] 2. A member of the conspiracy Attempted Murder to further the conspiracy; [¶] AND [¶] 3. Attempted murder was a natural and probable consequence of the common plan or design of the crime that defendant conspired to commit."
Here, there was circumstantial evidence that arguably supported each of the alleged overt acts. As a result, there was substantial evidence that supported a theory that Vasquez conspired with Garcia and Sanchez to commit the crime of disturbing the peace and that Garcia's attempted murder of Ortiz was a natural and probable consequence of the conspiracy. Vasquez argues that there was no evidence of an agreement between himself, Garcia, and Sanchez to commit the target crime of instigating a fight in public. While we certainly agree that there was no direct evidence of such an agreement, there was circumstantial evidence of some kind of advance agreement to attack Top and Ortiz in a coordinated manner as discussed more fully in the prior analysis.
In sum, we find that there was substantial evidence to support Vasquez's conviction for attempted murder. B. The Pattern Jury Instruction on Flight, CALCRIM No. 372
Vasquez argues that the pattern jury instruction concerning a defendant's flight from the scene of a crime violated due process because it "allowed the jury to make a permissive inference from [his] conduct of fleeing or attempting to flee following Garcia's commission of the crime." We disagree.
As required by statute: "In any criminal trial . . . where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime . . . is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine." (§ 1127c.)
In this case, the jury was instructed using CALCRIM No. 372: "If the defendant fled immediately after the crime was committed . . . that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." A previous version of the instruction, CALJIC No. 2.52, stated: "The [flight] . . . of a person [immediately] after the commission of a crime, or after [he] . . . is accused of the crime, is not sufficient in itself to establish [his] . . . guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
Our Supreme Court has repeatedly held that a narrowly crafted instruction that allows a jury to infer a defendant's guilt based on his flight from the scene of an alleged crime does not violate due process. (See, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1243 [approving CALJIC No. 2.52]; see also People v. Mendoza (2000) 24 Cal.4th 130, 179 [approving CALJIC No. 2.52].) When we compare the former CALJIC flight instruction with the current CALCRIM version, we find them to be relatively the same. Thus, under principles of stare decisis, we are required to uphold CALCRIM No. 372. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Vasquez points out that unlike CALJIC No. 2.52, the CALCRIM instruction uses the phrase "aware of his guilt." Vasquez argues that CALCRIM No. 372 goes beyond telling jurors that flight may simply be considered as an indication of a defendant's guilt; he maintains that CALCRIM No. 372 communicates to jurors that a defendant's flight may show that a defendant was subjectively "aware of his guilt." We are not persuaded. We find that the Judicial Council's use of the phrase "aware of his guilt" is simply an alternative way to communicate the same concept regarding flight. (See Cal. Rules of Court, rule 2.1050(a) ["The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California"].) Two appellate courts have reached the same conclusion in published opinions. (See People v. Rios (2007) 151 Cal.App.4th 1154, 1159 ["we reject Rios's arguments that CALCRIM No. 372 impermissibly presumes the existence of his guilt and lowers the prosecution's burden of proof"]; see also People v. Paysinger (2009) 174 Cal.App.4th 26, 29-32 [CALCRIM No. 372 does "'not presuppose the commission of the crime charged'"].)
Further, the propriety of jury instructions is determined from "'the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Jeffries (2000) 83 Cal.App.4th 15, 22.) The flight instruction was not given in a vacuum; the court also instructed the jury regarding the presumption of innocence and the prosecution's burden to prove Vasquez's guilt beyond a reasonable doubt. (CALCRIM No. 220.) In sum, when considered in toto, the court's instructions did not deprive Vasquez of his constitutional right to due process of law. C. Imperfect Self-Defense Instruction
A trial court is required to instruct a jury on any lesser included offenses of the charged crimes that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is that from which a reasonable jury could conclude the defendant committed the lesser offense, but not the greater offense. (Ibid.) "'Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. [Citations.]' [Citation.]" (People v. Romo (1990) 220 Cal.App.3d 514, 519.)
Imperfect self-defense is a form of voluntary manslaughter, which is a lesser included offense of murder. (People v. Barton (1995) 12 Cal.4th 186, 200-201.) A defendant's claim of "imperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter. Thus the trial court must instruct on this doctrine, whether or not instructions are requested by counsel, whenever there is evidence substantial enough to merit consideration by the jury that under this doctrine the defendant is guilty of voluntary manslaughter. [Citation.]" (People v. Michaels (2002) 28 Cal.4th 486, 529.)
"Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] . . . . [¶] 'One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.]'" (People v. Randle (2005) 35 Cal.4th 987, 994.)
At trial, Garcia testified in his own defense. Garcia said Ortiz attacked him by repeatedly swinging a large belt buckle at his head: "He keeps hitting me." Garcia said that based on Ortiz's attack, he was "fearing for his life." Garcia testified that he only stabbed Ortiz after he refused to back away. Garcia's testimony was somewhat corroborated by Cruz's testimony; Cruz said that when he entered the alley he saw Ortiz standing with his belt raised above his head. Accordingly, the jury may have believed that Garcia actually feared for his life, but the jurors may have also found Garcia's fear was unreasonable under the circumstances. Thus, as we held in Garcia's case, we find that the trial court erred by failing to instruct the jury on imperfect self-defense. (People v. Garcia, supra, G052567.)
However, Garcia was convicted as a direct perpetrator, while Vasquez was convicted as an aider and abettor. Therefore, we asked the parties to address the case of People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), which raises a question as to whether the trial court's failure to instruct on imperfect self-defense as to a direct perpetrator necessarily requires the reversal of an aider and abettor's conviction.
In McCoy, defendants McCoy and Lakey both fired handguns in a fatal drive-by shooting, but the evidence showed that the fatal bullets were fired only from McCoy's weapon. (McCoy, supra, 25 Cal.4th at p. 1115.) At trial, McCoy testified and admitted firing his weapon, "but claimed he did so because he believed he would be shot himself." (Ibid.) The trial court instructed the jury on imperfect self-defense, but the Court of Appeal found the instruction to be prejudicially erroneous and reversed McCoy's convictions for murder and attempted murder. At issue in the California Supreme Court was whether the reversal of the convictions of the actual perpetrator (McCoy) also required the reversal of the convictions of the aider and abettor (Lakey). (Id. at p. 1116.) The court held that "McCoy's unreasonable self-defense theory was personal to him. A jury could reasonably have found that Lakey did not act under unreasonable self-defense even if McCoy did." (Id. at p. 1122.) Thus, the court did not reverse Lakey's convictions.
In McCoy, the Supreme Court explained that as a direct aider and abettor, Lakey intentionally aided and abetted the target offense of murder; that is, Lakey harbored his own intent to kill. (McCoy, supra, 25 Cal.4th at p. 1118.) Therefore, even though McCoy may have had an unreasonable belief in the need for self-defense, McCoy's state of mind did not negate Lakey's intent to kill. (Id. at p. 1122.) However, what was critical to the Supreme Court's analysis in McCoy was that the jury was only instructed on a direct theory of aider and abettor liability, not the natural and probable consequences theory. (Id. at p. 1117 ["Nothing we say in this opinion necessarily applies to an aider and abettor's guilt of an unintended crime under the natural and probable consequences doctrine"].)
Again, an aider and abettor's liability extends not only to crimes that were intentionally aided and abetted ("target" offenses), but also to any more serious crimes that were reasonably foreseeable ("nontarget" offenses). (People v. Laster, supra, 52 Cal.App.4th at p. 1463.) "'A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.'" (People v. Medina (2009) 46 Cal.4th 913, 920, italics added.) That is, under the natural and probable consequences theory, an aider and abettor cannot be liable for a crime that the perpetrator did not actually commit.
Unlike McCoy, in this case the trial court instructed the jury on the natural and probable consequences doctrine. (McCoy, supra, 25 Cal.4th at p. 1117.) It is possible that some of the jurors found Vasquez guilty under that doctrine. (People v. Davis (1992) 8 Cal.App.4th 28, 44-45 [it is unnecessary that jurors unanimously agree on theory supporting guilt].) Here, we have reversed the conviction of Garcia, the direct perpetrator. Simply put, under the natural and probable consequences doctrine, Vasquez cannot be held liable for a crime that Garcia is not guilty of committing.
"When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." (People v. Chiu (2014) 59 Cal.4th 155, 167.) Here, there is no evidence in this record (jury questions or the like) that would lead us to conclude that the jury convicted Vasquez on a direct theory of aider and abettor liability rather than under the natural and probable consequences doctrine. Thus, just as we did in Garcia's appeal, we must reverse Vasquez's conviction because of the trial court's failure to instruct the jury on imperfect self-defense.
III
DISPOSITION
The judgment is reversed.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.