PEOPLE v. GONZALEZ

Appellant's Opening Brief on the Merits

Cal.July 14, 2011

Supreme Court Case No. $189856 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) Court of Appeal No. D055698 CALIFORNIA, ) Superior Court No. FVA024527 ) Plaintiff-Respondent, ) SUPREME COURT v 5 FILED PERLA ISABEL GONZALEZ, ) ) JUL 14 204 Defendant-Appellant. ) . | ) Frederick K. Ohtrich Clerk L Deouiy oRC APPEAL FROM THE SUPERIOR COURT OF SANBERNARDINO COUNTY8.29(0) HONORABLE MICHAEL KNISH, JUDGE _ APPELLANT’S OPENING BRIEF ON THEMERITS LAURA SCHAEFER State BarNo. 138801 BOYCE & SCHAEFER 934 23rd Street San Diego, CA 92102-1914 (619) 232-3320 Attorneys for Defendant-Appellant PERLA ISABEL GONZALEZ’ Supreme Court Case No. $189856 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal No. D055698 Superior Court No. FVA024527 Plaintiff-Respondent, V. PERLA ISABEL GONZALEZ, Defendant-Appellant. N e e N e N e e e e e e e e e e e e e e ” e e ” APPEAL FROM THE SUPERIOR COURT OF SANBERNARDINO COUNTY HONORABLE MICHAEL KNISH, JUDGE APPELLANT’S OPENING BRIEF ON THEMERITS LAURA SCHAEFER State BarNo. 138801 BOYCE & SCHAEFER 934 23rd Street San Diego, CA 92102-1914 (619) 232-3320 Attorneys for Defendant-Appellant PERLA ISABEL GONZALEZ TOPICAL INDEX Page TABLE OF AUTHORITIES......... 0.00... cece ee eens iv, V, Vi APPELLANT’S OPENING BRIEF ON THE MERITS .................. 1 QUESTIONS PRESENTED ........0. 000.0 eect ene es l INTRODUCTION ...... 00.0.0eete tne teens 1 STATEMENT OF THE CASE ......... 00... c cece eect eens 5 STATEMENT OF FACTS 2.2.0.0 ccc cece cece ee ecee steers eeees 7 THE PROSECUTION CASE 2.0.00 0.00 cc ccc cece cece eee teceeneeenes 7 The Parties and the Events Before the Shooting. ................. 7 The Shooting, 2.0... .eeeeee teen tes 8 Jorge Gonzalez. 2...etceeeeenee 8 Roberto Canas ..... 0.0... eeecette 9 Raydeen. 2... 0.0... eceetenes 11 Rosalba Osguera .... 6... ceeeeeeee 12 The Crime Scene Investigation .......... 0... 0. cece eee eee 12 The Autopsy 2.0... 2...eecteee eens 13 THE DEFENSE CASE ........ 00.0 cece eect teen en eee 14 ARGUMENT....... 0.000eeeete net eens 15 Il. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN PERLA’S CONVICTION FOR THE MURDER OF MORALES....... 15 Introduction. .. 0.0... .ceeeeeee ees 15 Standard of Review ...... 0.0... cece ee eee eee 16 The Provocative Act Murder Doctrine ............0..00... 16 Perla Cannot Be Held Vicariously Liable for Aiding and Abetting Morales in His Own Murder. ........... 0.0...0c 17 Perla’s Acts Were Insufficient to Provoke a Lethal Response, And Did Not Proximately Cause Morales’ Death................ 22 l. Perla’s Acts Committed Before the Confrontation With Canas Did Not Provoke Canas’ Lethal Response ............ 22 2. The Accused Must Proximately Cause The Accomplice’s Death 2.0.0...eeeeen tenes 23 3, Perla’s Retrieval of the Gun Was Not Malicious or Provocative and Did Not Proximately Cause Morales’ Death Lecce nee eee nee e ee eee veneerseee eee eee eee. 26 4. Cases Finding Provocative Act Murder Require That The Defendant Engage in a Life-Threatening Violent Act That Justifies The Lethal Response ..................05. 27 5. Evidence of Perla’s Attempted Murder Conviction, Based on Vicarious Liability, Is Not a Provocative Act ......... 31 THE COURT’S ERRORIN FAILING TO INSTRUCT THE JURY THAT PERLA HAD TO PERSONALLY PREMEDITATE AND DELIBERATE WAS NOT HARMLESS BEYOND A REASONABLE DOUBT. ........ 0.000. 0c eee eee 33 i A. Procedural Background ......... 0... 0c cece eee eee eee 33 B. The Prosecution Must Prove Beyond A Reasonable Doubt That The Error Did No Contribute To The Verdict, A Standard Not Satisfied By A Determination That A Rational Jury Could Find Perla Premeditated and Deliberated .................. 0.000000. 37 C. The Instructional Error Was Not Harmless Beyond A Reasonable Doubt. 2.0...eeeten tenes 43 IW. CONCLUSION ......0..0.200 00.0 0ccee eens 47 Certificate of Word Count Proof of Service ll TABLE OF AUTHORITIES CASES Page Bollenbach v. United States (1946) 326 U.S. 607 1.0.0.0... 0... eee 47 Carella v. California (1989) 491 U.S. 263 0...cccnee 37 Chapmanv. California (1967) 386 U.S. 18 ......... 3, 37, 38, 39, 40, 42, 43 Estelle v. McGuire (1991), 502 U.S. 62 0.0... ccc cece cece cee eee 38 Gilbert v. California (1967) 388 U.S. 263 2.0... ceceee 17 Griffin v. California (1965) 380 U.S. 609 00...ceeee 38 In re Aurelio R. (1985) 167 Cal.App.3d 52 ......... 0.0.0.2 0 05. 17, 22, 31 In re Joe R., (1980) 27 Cal.3d 496 .. 0.0... ee eee, 17, 20, 29, 30, 31 In re Tyrone B. (1976) 58 Cal.App.3d 884 2.0.0... eee eee 28, 30 Jackson v. Virginia (1979) 443 U.S. 307 2...nes 16, 33 Nederv. United States (1999) 527 U.S.1.............. 4, 40, 41, 42, 43, 44 People v. Anderson (1968) 76 Cal.2d 15 21...eeeee 44 People v. Antick (1975) 15 Cal.3d 79 .............00.. 2, 15, 18, 19, 21, 22 People v. Briscoe (2001) 92 Cal.App.4th 568 ............ 0.200000 20, 21 People v. Caldwell (1984) 36 Cal.3d 210 ..... 0.0.0.0... eee eee. 17, 23, 26 People v. Cervantes (2001) 26 Cal.4th 860 ........... 18, 22, 23, 25, 26, 32 People v. Concha (2009) 47 Cal.4th 653 2.0... 2. eee eee 3, 33 iV People v. Concha (2010) 182 Cal.App.4th 1072 ...............0.00005 40 People v. Flood (1998) 18 Cal.4th 470 2.0...eee 37, 42, 43 People v. Gallegos (1997) 54 Cal.App.4th 453 2.0... eee eee 29, 31 People v. Garcia (1999) 69 Cal.App.4th 1324 ...... 0.0.0.0... 00000. 21,29 People v. Gilbert (1965) 63 Cal.2d 690 2.00... eee eee 16, 18, 29 People v. Izaguirre (2007) 42 Cal.4th 126 2... 0... 0. cece eee 37 People v. Johnson (1980) 26 Cal.3d 557 2... ceceeee 16 People v. Lewis (2006) 139 Cal.App.4th 874 ..... 0.0... 00... cece eee 40, 41 People v. Mai (1994) 22 Cal.App.4th 117 2... 0.0.00... 00.00... 20, 27 People v. Seel (2004) 34 Cal.4th 535 2...eeeeee 37 People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833 ........ 20, 21 People v. Thompkins (1987) 195 Cal.App.3d 244 2.2.0.2... 0.00... eee 47 People v. Velasquez (1975) 53 Cal.App.3d 547 1.0.0... 0.0... a. 28, 29, 30 People v. Washington (1965) 62 Cal.2d 777 oo... ccc ee eee 16 People v. White (1995) 35 Cal.App.4th 758 2.0... cece ee eee 20 Rose v. Clark (1986) 478 U.S. 570 2...ceeens 39 Sullivan v. Louisiana (1993) 508 U.S. 275 1...eeee 40 United States v. Gaudin (1995) 515 U.S. 506.2...eee 37 Yates v. Evatt (1991) 500 U.S. 391 2...eee 38, 39, 42 JURY INSTRUCTIONS CALCRIM 560 1...nette ns 34, 35 CALCRIM 570 2...teentenet eens 35 CALCRIM 601 2...ccceee tenet nent e eens 33 UNITED STATES CONSTITUTION Fourteenth Amendment .......... 0.0.0.0 c eee eee eee eee 16, 37 Sixth Amendment ......... 0.0.0.0 eee eee eee eee eee n eee e eens 37 vi Supreme Court Case No. $189856 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) Court of Appeal No. D055698 CALIFORNIA, ) Superior Court No. FVA024527 ) Plaintiff-Respondent, _) ) v. ) ) PERLA ISABEL GONZALEZ, ) ) Defendant-Appellant. _) ) APPELLANT’S OPENING BRIEF ON THE MERITS QUESTIONS PRESENTED 1. Wasthe evidence sufficient to convict defendant Perla Gonzalez offirst degree provocative act murder? 2. Wastheinstructional error in failing to tell jurors that Gonzalez had to personally premeditate the attempted murderin order to be guilty offirst degree provocative act murder harmless beyond a reasonable doubt? INTRODUCTION Roberto Canas shot and killed Fernando Morales, Perla Gonzalez’s boyfriend, during a confrontation between Morales and Canas. Morales assaulted Canas, stabbing him with a knife. Canas got the upper hand in the fight and Gonzalez retrieved a gun and gaveit to Morales, who shot Canasin struggle for the gun. Canas took the gun from Morales and shot and killed him. Perla Gonzalez! wastried and convicted ofthe attempted murder of Canas andthefirst degree murder of Morales. Perla was convicted ofmurder based ona provocative act theory. Given the jury’s finding on the weapon use enhancement, the jury necessarily based its verdict on hervicariousliability for the acts ofher accomplice, Fernando Morales. But because Morales could not himself have been guilty of his own murder, Morales’ provocative acts cannot be used to convict Perla of murder. (Peoplev. Antick (1975) 15 Cal.3d 79, 91-92, (Antick) disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111.) Under Antick, Perla cannot be guilty of vicariously aiding in the killing of her decedent accomplice, Morales. Even assuming Perla could be convicted based on heraiding and abetting the decedent accomplice, she did not engagein a life-threatening provocative act sufficient to sustain the murder conviction. Perla only retrieved a gun and gave it to Morales; this act was insufficient to provoke a lethal response in Canas. ' For ease of reference Perla Gonzalez will be referred to by her first name to distinguish her from her brothers, Ricardo and Jorge. 2 Accordingly, the murder conviction under the provocative act doctrine is not supported by sufficient evidence. Assumingthe evidence is sufficient to sustain the murder conviction, the trial court prejudicially erred in instructing the jury that they could find Perla premeditated the murder based on Morales’ intent. This Court held in People v. Concha (2009) 47 Cal.4th 653 (Concha J,’ that first degree murderliability is - available for provocative act murder, but only if a properly instructed jury finds the defendant personally acted wilfully, deliberately, and with premeditation. Here, the trial court erroneously instructed the jury they could find that Perla premeditated and deliberated the murder if they found that Morales or Perla premeditated the murder. A majority ofthe Court ofAppeal held the error was harmless becausethere was evidence from which “a rational jury could conclude that Perla personally premeditated and deliberated.” [Emphasis in original.] (Slip Opn., p. 32.) This does not comport with the standard in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), requiring the prosecution to prove beyond a reasonable doubtthat This Court in Concha I remandedthe case to the Court of Appeal to determine whetherthe instructional error was harmless beyond a reasonable doubt. (/d.at p. 667) In People v. Concha (2010) 182 Cal.App.4th 1072 (Concha I), the Court of Appeal concludedthe error was harmless. 3 the error did not contribute to the verdict. It is also not consistent with the standard in Neder v. United States (1999) 527 U.S. 1, 17, which requires the reviewing court to conclude “beyond a reasonable doubtthat the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the sameabsentthe error.” Perla contested her intent, including her intent to premeditate and deliberate murder; her intent was the main issue in dispute. Further, the evidence that she planned to murder Canas cannotbe characterized as “overwhelming.” Onthe other hand, evidence that Morales premeditated the murder was very strong. This disparity in the strength of the evidence likely caused the jury to apply the erroneousinstruction to find the allegation true based on Morales’, not Perla’s, intent. In any event, in this case, there is no need tospeculate about whether the jury considered and applied the erroneousinstruction because the deliberatingjury asked the court for guidance on second degree murderandthe court referred them to the erroneous instruction. Given the context in which the instructional error occurredin this case, the error cannot be deemed harmless beyond a reasonable doubt. STATEMENT OF THE CASE Petitioner and appellant Perla Isabel Gonzalez was charged in an amended information in count 1 with premeditated attempted murder of Roberto Canas (Penal Code’® §§ 664/187, subd. (a)) and in count 2 with first degree murder of Fernando Morales (§ 187, subd. (a)). Count 1 alleged Perla personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). (1 CT* 224-225.) Perla entered not guilty pleas as to all counts, denied the arming allegation, and her case went to a jury trial. (1 CT 251.) The trial court denied Perla’s section 1118 motion to dismiss. (2 CT 315.) At the close ofthe defense case, Perla renewed her section 1118 motion; the court denied it. (2 CT 320.) Thejury found Perla guilty ofdeliberate and premeditated attempted murder and first degree murder, but did not find that she personally and intentionally dischargeda firearm. Instead, the jury found Perla personally used a firearm (§ 12022.53, subd. (b)) in the attempted murder. (2 CT 407-412.) The court imposed 25 years to life on count 2 (§ 187, subd. (a)) and life with parole on count 1 (§§ 664/187, subd. (a)) plus 10 years for the firearm > All statutory references are to the Penal Code unless otherwisestated. * “CT”refers to the Clerk’s Transcript. enhancement(§ 12022.53, subd. (b)) concurrent, for a total state prison term of25 years to life. (2 CT 444-445.) Perla appealed her convictions. (2 CT 448.) On appeal, Perla raised several issues, including inter alia, that the evidence was insufficient to sustain the murder conviction;that thetrial court erred in failing to instruct the jury that they could notfind Perla guilty ofmurder based on the provocative acts ofthe decedent accomplice;andthat the trial court prejudicially erred by instructing the jury they could find Perla premeditated the murder based on Morales’ mental state. In an opinion issued on December 9, 2010, a majority of the Court of Appeal rejected Perla’s arguments and affirmed her convictions. The Court of Appeal concluded that Perla’s aiding and abetting Morales wassufficiently provocative to support the murder conviction, and that Perla proximately caused Morales’ death by going to the scene with a loaded gun and providingit to Morales. (Slip Opn., pp. 15-17.) A majority of the appellate court concluded the trial court erred by instructing the jury it could find Perla guilty of premeditated murder based on Morales’ mental state, but held the error was harmless beyond a reasonable doubt. (Slip Opn. pp. 32-35.) Justice Aaron dissented from this portion of the opinion. Justice Aaron foundtheinstructional error was not harmless because evidence of Morales’ culpable mental state was strongerthan Perla’s, increasingthe likelihood that this jury relied on Morales’ mental state to convict Perla of first degree murder. Justice Aaron also foundit critical that the deliberating jury specifically requested an instruction on second degree murder, and the court supplied the erroneousinstruction which “grossly misstated the law regarding a key distinction betweenfirst and second degree murder.” (Slip Opn., J. Aaron, conc. & dis., pp. 1-5.) This Court granted review on the two questions presented above. STATEMENT OF FACTS THE PROSECUTION CASE The Parties and the Events Before the Shooting. Roberto Canas wasseparated from his wife, Joan Curiel. Canas and Curiel had a three year old daughter, Jolie. Curiel lived with Perla Gonzalez’s brother, Ricardo’. (2 RT® 228-229.) Canas wasjealous ofRicardo and the two had several confrontations before the shooting that resulted in Fernando Morales’ homicide. Morales was Perla’s boyfriend. (5 RT 1011-1017.) > Ricardo and Jorge, Perla’s brothers, will be referred to by their first names for ease of reference. ° “RT”refers to the Reporter’s Transcript. 7 The night before the shooting, Canas called Ricardo and told him that he had sex with Curiel. Curiel argued with Ricardo andleft. (5 RT 916-918.) As Curiel was leaving, Canas drove up. Ricardo wasalso leaving. (6 RT 1060- 1062.) Canas blocked Ricardo’s car then followed Ricardo in his vehicle. (6 RT 1063.) He tried to run Ricardo off the road. (6 RT 1065-1066.) Curiel went to a car wash andstayed there for 15 minutes before heading home. (6 RT 1066-1067.) When she returned, Ricardo,his sister Perla, Ricardo’s mother, his brother Jorge, and Morales wereat the apartment. (6 RT 1067.) Perla told Curiel that if anything happened to Ricardo, they were going to “kick [Canas’] ass.” (6 RT 1068.) Jorge testified that Morales had a Beebe gun. (4 RT 582; 644-645.) Canascalled and told them to go to the corner. Jorge, Morales and Perla went to the corner but Canas never showed up. (4 RT 578-582, 592-593.) The Shooting. Jorge Gonzalez Jorge testified that around 10:00 the next morning, Perla picked up Jorge and told him they were going to beat up Canas, who was going to the corner of Linden and Wilson Streets to meet Curiel’s mother, Rosalba Osguera, and pick up his daughter, Jolie. Perla and Jorge picked up Morales; Jorge brought a baseball bat and told Perla he would use the bat to break Canas’ car windows. (4 RT 601- 602.) Jorge told Morales that he could jumpinto the fight if Canas got the best of him. Perla wasin the car during this conversation. (4 RT 608.) Jorge saw rifle in the trunk of the car. (4 RT 609-619.) Perla, Morales and Jorge went to the corner of Linden and WilsonStreets where Canas was going to pick up Jolie. (4 RT 612-614.) They waited there; their car would not start. They got out of the car and Perla opened the hood. Jorge ran back to Curiel’s house to get his brother Ricardo to jumpstart the car. (4 RT 619-621.) As he walkedto the house, he saw Rosalba Osguera turning the corner ofWilson onto Linden Street with Canas’ daughter Jolie and Curiel’s other daughter Raydeen. (4 RT 619-620.) Roberto Canas Roberto Canastestified he went to pick up his daughter on the corner of Linden and Wilson Streets. He saw Osguera, his daughter Jolie, and Curiel’s daughter and son, Raydeen and Kevin, standing on the corner. (2 RT 242-243.) Canas saw Perla and Morales standing by a parked car with the hood up. (2 RT 246-248.) Canas had not met Perla or Morales. (2 RT 249-250.) Osguera looked edgy and told Canas to leave. (2 RT 250-251.) Morales 2approached Canasand said, “Hey, puto, I hear you got a problem.” Osguera moved out of the way and Morales began throwing punches. (2 RT 253-254.) Osguera got in the car with Canas’ daughter and tookoff. (2 RT 254-255.) Canas punched Moralesin the face. (2 RT 255-256.) Perla paced back and forth by the car. (2 RT 257.) Morales pulled out a three to four inch knife and lunged at Canas, cutting his left cheek. (2 RT 261.) Canas backed up but Morales continued to comeat him so Canas grabbed Morales’ legs,lifted him and threw him on the ground. (2 RT 262-263.) Morales got up and ran to the back of the car. (2 RT 263.) Canas saw Perla run to the passenger side of the car with a rifle. Perla pulled the gun’s hammerback and handedit to Morales. (2 RT 266-269.) Perla had therifle for only a couple seconds. (2 RT 272.) Canas ran to Morales and struggled with him for the rifle. (2 RT 272.) Canas’ handslipped and he heard multiple shots. He got shot in his hand between his thumb and forefinger. As he continued to struggle, he heard two more shots. Canas got control of the rifle. Morales stood up and ran behind Canasto the sidewalk. Canas thought Morales was going to get another weapon. (2 RT 273- 274.) Perla ran north on the sidewalk. Canas believed Perla was goingto try to get someone or something to hurt him. Canas shot Morales;he fell face first on 10 the sidewalk. (2 RT 275-276.) Canas fired between three and five shots until there were no morebullets in the rifle. (2 RT 323.) Canas shot Morales as he ran away. (2 RT 327-328.) Curiel drove up ina blue Volkswagen,tookoff, then returned a minutelater with Ricardo, who wasdriving a brown Chrysler behind her. (2 RT 279-281.) Perla dragged Morales into the Volkswagen and they drove him to the hospital. (2 RT 284-285; 4 RT 627-631.) Canas wasshotin the right bicep, the thigh and between the thumb and forefinger on his left hand. (2 RT 287-289.) The police arrived and he was transported to the hospital. (2 RT 298-299.) _Raydeen Raydeentestified that Osguera and Jolie went to the corner to meet with Canas and drop off Jolie. They were going to tell Canas not to come because Perla and Morales were there. (3 RT 414-417.) Osguera put Jolie in Canas’ car. (3 RT 426-427.) Canas told Osguera to get in the car and leave. (3 RT 428.) Canas argued with Morales in Spanish. (3 RT 429-430.) They started fighting but she did not know who threwthefirst punch. (3 RT 429-430.) Although shetold the police that Moralesfirst had the knife, she testified at trial she did not know whofirst had the knife. (3 RT 429- 1] 431.) Raydeen testified Perla took the gun out of the car, but Raydeen turned around and did not see what she did with the gun. (3 RT 447.) She saw Morales and Canasfighting over the gun. (3 RT 435.) Raydeen heard the gun go off once whenthey were fighting and again when Moralesfell. (3 RT 440.) Rosalba Osguera Rosalba Osgueratestified she took Jolie to meet Canas. (4 RT 707-710.) Whenshe got there, Perla told her to leave. (4 RT 714.) Canas pulled up and Morales said something to him. (4 RT 718-719.) She put Jolie in the car and saw Perla go to hercar and take out a stick.’ (4 RT 719-720.) Assheleft, she looked in the rearview mirror and saw Perla walking toward Curiel’s house. (4 RT 726- 727.) The Crime Scene Investigation. Anofficertestified that duct tape coveredpart ofthe license plate on Perla’s car. (6 RT 1165-1166.) A roll of duct tape and a baseball bat were recovered from the car. (4 RT 789.) A knife and eight casings were found at the scene. (4 Osgueratestified she saw Perla raise the “‘stick” and heard gunshots. (4 RT 720.) The jury, however, found that Perla did not intentionally discharge the firearm. (2 CT 412.) 12 RT 766-767, 769-775, 785-788.) Two groups of casings wererelatively close to one another. No casings were found near the car. (4 RT 807.) A firearm expert testified that the semi-automatic rifle holds 14 cartridges in the magazine andfires every time the trigger is pulled. (5 RT 962-963.) The Autopsy. The medical examinertestified that Morales sustained four gunshot wounds. An entrance woundto the chest led the examiner to believe that Morales was positioned sideways whenhe sustained this wound. (4 RT 547-548.) Morales could have been standing or on the ground whenhesustained this wound. (4 RT 550.) A second entrance wound was on Morales’ lower back with the bullet exiting through the abdomen. (4 RT 551-552.) A third entrance wound wasto the right of the midline of the back. (4 RT 554.) The bullet’s trajectory is angled upward consistent with the shooter standing over Morales while he waslying face down. (4RT570-571.) The gunshots werefired from a distance greater than two feet. (4 RT 546, 552, 556.) Morales sustained several abrasions consistent with being ina physical fight and a superficial slicing injury to his lower leg consistent with a knife cut. (4 RT 562-563.) 13 THE DEFENSE CASE Marlene Morales, Fernando Morales’ sister, went to the crime scene four to five days after the shooting and saw ten inch serrated knife on the sidewalk. (7 RT 1437-1441.) She kickedit into the grass because her brother was with her and she did not want him to suffer anymore. (7 RT 1442-1444.) She saw a dry red substance on the knife. (7 RT 1445-1446.) She did not tell Detective Mills about the knife when she was interviewed eight days after the shooting. (7 RT 1452.) 14 ARGUMENT I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN PERLA’S CONVICTION FOR THE MURDER OF MORALES A. Introduction. Robert Canas killed Fernando Morales. The prosecution tried the murder charge on only one theory, provocative act murder. (2 CT 363-371, 377-378.) Perla was convicted of murder based on hervicariousliability for the acts of her accomplice, Fernando Morales. But because Morales could not himself have been guilty of his own murder, Morales’ provocative acts cannot be used to convict Perla of murder. (People v. Antick (1975) 15 Cal.3d 79, 91-92, (Antick) disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111.) Under Antick, Perla cannot be guilty of vicariously aiding in the killing of her decedent accomplice, Morales. Even assuming Perla could be convicted based on her aiding and abetting the decedent accomplice, she did not engage in a provocative act sufficient to sustain the murder conviction. Perla’s retrieval of the shotgun was not a substantial factor causing Morales’ death. Perla did not initiate the attack on Canas; Morales did. Perla only retrieved the gun and cockedit; this act was 15 insufficient to provoke a lethal response in Canas and wasnot a cause ofMorales’ death. Accordingly, her murder conviction under the provocative act doctrineis not supported by sufficient evidence. B. Standard of Review. The Due Process Clause ofthe Fourteenth Amendmentis violated when the evidenceis insufficient to sustain a finding of guilt beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317.) To uphold the provocative act murder conviction here, this Court must “review the whole recordin a light most favorable to the judgment to determine whetherit contains substantial evidence .... from whicha rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) C. The Provocative Act Murder Doctrine. To prove a murderother than felony murder, the prosecution mustestablish the killing was done with malice aforethought. (§ 187, subd. (a).) Malice can be express or implied. (§ 188.) Provocative act murder is a form of implied malice murder. The doctrine is used to confer murder liability on a defendant whose accompliceis killed by a victim or a police officer because of the defendant’s provocative act, an act that involves a high degree ofprobability that it will result in death. (People v. Washington (1965) 62 Cal.2d 777, 782; People v. Gilbert 16 (1965) 63 Cal.2d 690, 704 (Gilbert), reversed on other grounds in Gilbert v. California (1967) 388 U.S. 263.) In a prosecution for provocative act murder, the state must prove beyond a reasonable doubt the following two elements: (1) the defendant or his non- decedent accomplice mustintentionally commit an act that involves a high degree ofprobability that the act will result in death; and (2) the conduct ofthe defendant or his non-decedent accomplice must be sufficiently provocative of a lethal response by a third party to support a finding of malice. (People v. Caldwell (1984) 36 Cal.3d 210, 216-217; In re Joe R. (1980) 27 Cal.3d 496, 504.) “To satisfy the ‘mensrea’ element, the defendantor his confederate must know that his act has a ‘high probability’ not merely a ‘foreseeable possibility’ ofeliciting a life- threatening response from the third party.” Qn re Aurelio R. (1985) 167 Cal.App.3d 52, 57.) “To satisfy the ‘actus reus’ element of this crime the defendant or one of his confederates must commit an act which provokesa third party into firing the fatal shot.” ([bid.) D. Perla Cannot Be Held Vicariously Liable for Aiding and Abetting Morales in His Own Murder. An accused whoaids and abets an accomplice may be guilty ofprovocative act murder, but only if that accomplice causes the death of another. (Gilbert, 17 supra, 63 Cal.2d at p. 704. Gilbert is the seminal case defining the parameters of provocative act murder. (People v. Cervantes (2001) 26 Cal.4th 860, 868.) In announcingthe basic principles ofliability for provocative act murder, the Gilbert court stated: “Underthe rules defining principals and criminal conspiracies, the defendant may be guilty of murder for a killing attributable to the act of his accomplice. To be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the commondesign. [Emphasis added.] (/bid.) Ten years later, this Court squarely addressedthis principle, and upheldthis rule stated in Gilbert, that an accused could not aid and abet a deceased accomplice in committing his own murder. (Antick, supra, 15 Cal.3d at pp. 91- 92.) In Antick, the defendant and his accomplice, Bose, burglarized a home. Later, officers approached a car suspected to have been usedin the burglary. Bose wasSeated in the driver’s seat; the police ordered him out of the car. Defendant was nearby and approached the vehicle. Bose pulled out a gun andfired at the officers who then fired back and killed Bose. Defendant Antick was convicted of Bose’s murder. (/d. at p. 83.) This Court reversed Antick’s murder conviction. Although Bose’s conduct in initiating the gun battle may have established the requisite malice, Bose’s 18 conductdid not result in the unlawful killing ofanother human being, but resulted in Bose’s death. Because Bose could not be guilty of murder in connection with his own death,“it is impossible to base defendant’s liability for this offense upon his vicarious responsibility for the crime of his accomplice.” (Antick, supra, 15 Cal.3d at p. 91.) “Tt is well settled that Bose's conductin initiating a shootout with police officers may establish the requisite malice. As we have noted on a number of occasions, a person whoinitiates a gun battle in the course ofcommitting a felony intentionally and with a consciousdisregard for life commitsan act thatis likely to cause death. [Citations.] However, Bose's malicious conduct did notresult in the unlawful killing of another humanbeing,but rather in Bose's own death. The only homicide which occurred wasthe justifiable killing of Bose by the police officer. Defendant's criminal liability certainly cannot be predicated upon the actions ofthe officer. As Bose could not be found guilty ofmurderin connection with his own death, it is impossible to base defendant's liability for this offense uponhis vicarious responsibility for the crime ofhis accomplice.” ( Antick, supra, 15 Cal.3d at p. 91.) Later courts have reiterated the rule stated in Antick and Gilbert. “Ifa provocative act is committed by an accomplice whois later killed by a crime 19 victim, that act cannot form the basis for a provocative act murder. As the accomplice cannot be guilty of murder in connection with his or her own death, so the defendant - who stands in the shoes of the accomplice- cannot be held vicariously responsible for such a killing.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 583, n. 5; see also, /n re Joe R., supra, 27 Cal.3d at p. 506, n.5; People v. Garcia (1999) 69 Cal.App.4th 1324, 1330-1331; People v. White (1995) 35 Cal.App.4th 758, 765; People v. Mai (1994) 22 Cal.App.4th 117, 120, disapproved on other grounds in People v. Nguyen (2000) 24 Cal.4th 756, 758; People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 845) In this case, the jury convicted Perla based on a theory of aiding and abetting Morales in the assault on Canas. The jury wasinstructed on aiding and abetting the attempted murder of Canas andthe target offenses of assault with a firearm and assault with force likely to produce great bodily injury. (2 CT 363- 371.) The jury was further instructed they could find Perla guilty of the murder ofMorales if she committed a provocative act in the commissionofthe crimes of assault with a firearm or assault with great bodily injury, and that her commission of attempted murder could be a provocative act. (2 CT 377-378.) Perla was not a direct perpetrator; she did not attack Canas, Morales did. The jury found that Perla did not discharge the gun, only that she personally used 20 the weapon, consistent with her aiding and abetting in the attempted murder by retrieving the gun,notfiring it. (2 CT 412.) Morales initiated the knife attack on Canas, obtained the gun and shot Canasin the struggle over the gun. While Morales’ conduct would suffice to establish malice, since Morales could not be convicted of murder for his own death, neither could Perla be convicted of murder on a theory of aiding and abetting Morales. Noris there any evidence Perla aided a third surviving accomplice in the shooting. (See, People v. Briscoe (2001) 92 Cal.App.4th 568 [defendantliable for provocative act murder because he aided and abetted a surviving accomplice, distinguishing Antick]; People v. Garcia (1999) 69 Cal.App.4th 1324; [provocative act murder liability based on aiding and abetting an accomplice who was not the murder victim]; (People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 845 [“It is only in cases like Antick, where the defendant's responsibility for murder is based on his vicarious liability for the acts of an accomplice who could not himself have been guilty of the offense that liability will notlie”’].) If a provocative act is committed by an accomplice whois later killed by a victim orpolice, that act cannot form the basis for a provocative act murder charge 21 under Antick. Consequently, Perla could not be guilty of aiding and abetting Morales in his own murder. E. _Perla’s Acts Were Insufficient to Provoke a Lethal Response, And Did Not Proximately Cause Morales’ Death. Even assuming an accused could be liable for murder based on aiding and abetting a decedent accomplice, here, Perla’s acts were not sufficient to provoke Canas’ lethal response and did not proximately cause Morales’ death. “The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gunbattle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim ofthe underlying crime, respondswith privilegedlethal force by shooting back and killing the perpetrator’s accomplice oran innocent bystander.” (People v. Cervantes, supra, 26 Cal.4th at p. 867.) The defendant must initiate the gun battle or engage in life- threatening act that proximately causes the decedent’s death to be guilty of provocative-act murder. (/bid.) 1. Perla’s Acts Committed Before the Confrontation With Canas Did Not Provoke Canas’ Lethal Response The accused’s act must “provoke a third party to fire a fatal shot.” (In re Aurelio R., supra, 167 Cal.App.3d at p. 57.) Perla’s acts occurring before the 22 confrontation between Morales and Canas cannot be considered “provocative acts” because Canas was not aware of them. Perla’s earlier statements of her intent to assault Canas (6 RT 1068), her knowledge ofthe plan to beat up Canas (4 RT 601-602, 608), her driving in the car with a gun to Canas’ location (4 RT 609-619) , and her pacing near the car where, unbeknownst to Canas, a gun was located (2 RT 257), did not provoke Canas to use lethal force, and cannot be considered provocativeacts. 2. The Accused Must Proximately Cause The Accomplice’s Death A closer question is whether Perla’s retrieval of the gun provoked Canas’ response. Two cases, People v. Caldwell, supra, 36 Cal.3d 210 (Caldwell), and People v. Cervantes, supra, 26 Cal.4th 860 (Cervantes)are instructive, but neither case is dispositive of the issue presented in this case. In Caldwell, three men, Belvin, Washington and Caldwell committed a robbery. The police pursued them in a high-speed car chase; Caldwell drove the getaway car. (Caldwell, supra, 36 Cal.3d at pp. 215-216.) During the chase, Caldwell’s car struck a police car. The defendants’ car came to a stop and an officer saw Washington armed with a shotgun pointedat him;the officer rammed his patrol car into the defendants’ car, and the shotgun discharged, then flew out of Washington’s hands. (/d. at p. 215.) 23 The officers took cover with their guns drawn. Belvin pointed his revolver out the window. Caldwell opened his door and crouched behindit with a gun in his hand. Washington took cover behind a post, and it appearedto the officers he might have had another weapon. (/bid.) The officers ordered the defendants to drop their weapons; they did not comply. Belvin took aim andtheofficers fired, killing Belvin. (/d. at p. 216.) Caldwell and Washington, the surviving accomplices, were convicted of murder on provocative act theory, and challenged the sufficiency ofthe evidence to sustain their murder convictions. The court concluded that Caldwell and Washington acted with implied malice; both intentionally committed acts manifesting a conscious disregard for human life. (Ud. at pp.217-218.) Washington pointed a gunat the officers and was only stopped from shooting the officers by their ramming the defendants’ car. Caldwell exhibited conscious disregard for humanlife by driving at high speedsin the rain with his headlights off, running through stop signs and colliding with vehicles. (/d. at p. 218.) The court had more difficulty with the issue of whether the defendants’ malicious acts proximately caused the subsequent shooting ofBelvin. (/d.at pp. 218-219.) The court noted that finding Caldwell’s driving was a “but for” cause ofBelvin’s death would require “somerather heroic inferences on the part of the 24 jury.” (dd. at p.219.) Ultimately, however, the court concluded that the defendants’ malicious conduct of fleeing in a dangerous high-speed chase, confronting the officers with weapons, and preparing to “shoot it out” with the deputies proximately caused Belvin’s death. (/d. at p. 222.) In Cervantes, a unanimous court concluded that the defendant’s act of shooting an Alley Boys gang memberdid not proximately cause the Alley Boys gang members’ revenge killing ofamemberofdefendant’s gang, and reversed the defendant’s murder conviction. (Cervantes, supra, 26 Cal.4th at p. 872.) Cervantes, a Highland Street gang member, was tried on a theory of provocative act murder. He shot and seriously injured an Alley Boys’ gang memberat a party attended by members of both gangs. Several seconds to a minute or two later, five Alley Boys gang membersshot and killed Cabrera, a memberof Cervantes’ gang,in retaliation. (/d. at p. 863.) The court concluded that Cervantes did not proximately cause the murder of Cabrera. The court found the facts “distinguishable from the classic provocative act murder case in a numberofrespects.” (/d. at p. 872.) The defendant was notthe initial aggressor; there was no direct evidence the Alley Boys shooters were present when Cervantes shot their fellow gang member; and Cervantes was running from the scene whenthe fatal shooting occurred. ([bid.) 25 The court also noted that the Alley Boys shooters were not responding to the defendant’s provocative act by shooting back at him or his accomplice. (/d. at pp. 872-873.) 3, Perla’s Retrieval of the Gun Was Not Malicious or Provocative and Did Not Proximately Cause Morales’ Death Perla’s case is readily distinguishable from Ca/dwell and more similar to Cervantes in several respects. Significantly Morales,not Perla, initiated the lethal attack by stabbing Canas with the knife. She retrieved a gun, but then immediately ran away. Perla was not prepared, as were the defendants in Caldwell, to “shootit out” with Canas. She hadthe rifle for “a couple of seconds” before she handedit to Morales, then fled. (2 RT 272.) Canastestified she ran north, toward Curiel’s house. (2 RT 275.) Perla did not point the gun at Canas. (2RT 273, 325.) Canastestified he was afraid when Morales drew the knife (2 RT 317); the knife attack provoked Canas, who at that point wasprivileged to use lethal force to defend himself. For these same reasons, the case is closer to Cervantes. Like Cervantes, Perla did notinitiate the lethal attack. Like Cervantes, she ran away immediately after retrieving the weapon and wasnot present when the two struggled for the gun andthe lethal shots were fired. Although Canastestified he was concerned 26 that Perla might go and get someone else to harm him (2 RT 276), his conduct showed he feared Morales, his aggressor, not Perla. Perla did not initiate the attack, did not point the gun at Canas, and did not force the shooting of Morales. Her act was not a substantial factor provoking Canas’ lethal response. 4, Cases Finding Provocative Act Murder Require That The Defendant Engage in a Life-Threatening Violent Act That Justifies The Lethal Response A common thread runs through those cases upholding provocative act murder: all require some violent life-threatening act that causes the victim or police to immediately respond with lethal force. In People v. Mai (1994) 22 Cal.App.4th 117, defendant Mai and his accomplice entered a fabric store, grabbed the shop owner and dragged her to the back office at gunpoint. Other family memberswerein the back office; they were orderedto lay on the ground. The defendant Mai hit and kicked various family members until one retrieved a gun, fired a shot, and killed the defendant’s accomplice. (/d. at p. 121.) Mai was convicted of the murder of his accomplice killed by the shop owner. The court found that Mai’s acts ofhitting and kicking the shop owner and forcing her and her family membersto sit in execution-style positions on the floor provoked the family memberto use lethal force. (Ud. at pp. 126, 128.) 27 In In re Tyrone B. (1976) 58 Cal.App.3d 884, the defendant and his confederate Tony agreed to rob a 7-11 store. Tony, armed with a shovel handle, and the defendant, armed with a knife, entered the store. Tony struck the clerk on the head with the shovel handle and the defendant came up from behind, and stabbed andbeat the clerk. The clerk managedto obtain his gun andfired at the accomplice, killing him. (/d. at pp. 886-887.) The court held that the defendant and his accomplice’s initiation of a simultaneous physical assault on the clerk, stabbing the clerk with a knife while the accomplice beat him with a shovel handle substantially supported a finding that the defendant intentionally and with conscious disregard for life committed acts likely to cause death and provoke a lethal response in the store clerk, and upheld the murder conviction. (/d.at p. 890.) ~ In People v. Velasquez (1975) 53 Cal.App.3d 547, two officers attempted to arrest the defendant and he forcibly resisted,striking both officers. Defendant’s brother arrived and joined forces with the defendant. The defendant and his brother succeededin obtainingthe officer’s batons and beat the officers severely. Oneofthe officers pulled out his gun and shot and killed the defendant’s brother. Ud. at pp. 551-552.) 28 The Velasquez court upheld the murder conviction ofthe defendant because he “initiated the bloody and potentially lethal battle in the process ofresisting arrest, and his deliberate action resisting arrest and assaulting deputy Johnston caused deputy Khardin to react by shootingto kill in the performanceofhis duty, as well as in defense of Johnston.” (/d. at pp. 889-890.) Other cases imposing provocative act murder liability require that the defendant engage in somelife-threatening violent act, such as firing a weapon or beating a victim, that provokes the victim to use lethal force. (See, Gilbert, supra,63 Cal.2d at p. 703; [accomplice killed by police after defendant shot and killed anotherpolice officer]; People v. Garcia, supra, 69 Cal.App.3d at p. 1330 [firing a gun into the ceiling of an occupied bedroom during home invasion robbery]; People v. Gallegos (1997) 54 Cal.App.4th 453, 455 [defendantfired a shot at victim whoreturnedfire, killing bystander].) In In re Joe R., supra, 27 Cal.3d 496, this Court reversed a provocative act murder conviction where there was no evidence of“life-threatening acts” on the part of a minor who aided and abetted in the crime of armed robbery. In Joe R., the minor and his accomplice robbed a Taco Bell at gunpoint, and while fleeing the scene stoppedto rob another victim, Anderson, who waswaitingat a busstop. Anderson was taken to a remote area where Joe hit him from behind while the 29 accomplice held Anderson at gunpoint. Anderson managed to wrest the accomplice’s gun from him andshot the accomplice while Joe fled the scene. (/d. at p. 501.) On appeal, the minor argued the evidence was insufficient to sustain his murder conviction based on the provocative act doctrine. This Court held that the minor’s acts of moving the victim from relative safety, his repeated threats and references to the accomplice’s gun, and the minor’s hitting the victim on the back ofthe head did not constitute provocative acts sufficient to imposeliability for the murder of his accomplice. (/d. at pp. 506-507.) Although the minor’s punching the victim Anderson was a malicious act taken in conscious disregard for life and could have allowed the accomplice to prevail and shoot Anderson,the act did not provoke Anderson’s lethal resistance and was not the proximate cause of the accomplice’s death. Un re Joe R., supra, 27 Cal.3d at p. 507.) The court noted that none of the minor’s acts initiated the deadly assault which predictably produced a lethal response from the victim. ([bid.) The court in Joe R. distinguished both In re Tyrone B., supra, 58 Cal.App.3d 884 and People v. Velasquez, supra, 53 Cal.App.3d 547 because those defendants perpetrated a deadly assault that produced a lethal response from the 30 victim. Un re Joe R., supra, 27 Cal.3d at p. 508.) Here, Perla did not engage in anylife-threatening violent act provoking Canas to shoot Morales. She gave Morales the gun, but it was Morales who initiated the knife attack and shot Canas multiple times. As in Joe R., Perla’s act ofhanding Morales the gun could have allowed Moralesto prevail, but the act did not provoke Canas’lethal resistance and wasnot the proximate cause ofMorales’ death. Because Perla did not engage in any life-threatening acts, her murder conviction cannotstand. 5. Evidence of Perla’s Attempted Murder Conviction, Based on Vicarious Liability, Is Not a Provocative Act In People v. Gallegos, supra, 54 Cal.App.4th at p. 455 and In re Aurelio R., supra,167 Cal.App.3d at p. 60, the courts stated that the defendant’s attempt to kill the victim is a provocative act sufficient to impose murder liability. The courts have correctly concluded that if the defendant commits an attempted murder, no “independent provocative act” separate from the “underlying felony” of attempted murderis required to be proved,as in the case of robbery. But that does not mean that all attempted murders are “provocative acts,” proximately causing a lethal response, particularly in the context of aiding andabetting. 31 If this were the case, the defendant in Cervantes, who committed an attempted murder, would also be guilty of provocative act murder, even though he did not proximately cause the murder. Onthe other hand,ifthe defendant with conscious disregard for human life, but no intent to kill, shoots into a crowd, causing anotherto return fire, then the prosecution would be required to prove he engaged in a provocative act separate from some underlying felony, because his act and intent would not constitute an attempted murder. While such a brightline rule has facially logical appeal, it is unnecessary, and can lead to the wrong result. The courts should be required to determine on a case by case basis whether the accused acted with malice and engagedinlife- threatening provocativeacts. Here, as argued above, although the jury convicted Perla of attempted murder, it did so on an aiding and abetting theory. Perla’s acts committed before she even met up with Canasare not “provocative,” although they could have formed the basis for Perla’s attempted murder conviction on an aiding and abetting theory, by driving Moralesto the scene of the assault. The only act Perla committed at the scene, however, was handing the gun to Morales, andthis act, as argued above,did not proximately cause Morales’ death. 32 The evidencein this case wasinsufficient to establish a provocative act by Perla, committed with conscious disregard for life. The murder conviction violates Due Process and mustbe reversed. (Jackson v. Virginia, supra,at p. 317.) II. THE COURT’S ERROR IN FAILING TO INSTRUCT THE JURY THAT PERLA HAD TO PERSONALLY PREMEDITATE AND DELIBERATE WAS NOT HARMLESS BEYOND A REASONABLE DOUBT. A. Procedural Background This Court held in People v. Concha, supra, 47 Cal.4th 653, that first degree murderliability is available for provocative act murder, but only if a properly instructedjury finds the defendantpersonally acted wilfully, deliberately, and with premeditation. Thetrial court in this case erroneously instructed the jury they could find Perla guilty of first degree premeditated murder based on Morales’ mentalstate. (2 CT 357, 378-379; 8 RT 1676-1677, 9 RT 1653-1654.) The Court ofAppeal concludedthetrial court committed instructionalerror, but the majority ofthe court found it harmless beyond a reasonable doubt. (Slip Opn., p. 32-33.) Thetrial court instructed the jury on the premeditation allegation for the attempted murder charge under CALCRIM No.601 as follows: If you find the defendant guilty of attempted murder under Count 1, you must then decide whether 33 the People have provedthe additionalallegation that the attempted murder was done willfully, and with deliberation and premeditation. The defendant Perla Gonzalez acted willfully if she intended to kill when she acted. The defendant Perla Gonzalez deliberated if she carefully weighed the considerations for and against her choice and, knowing the consequences, decided to kill. The defendant Perla Gonzalez premeditated if she decided to kill before acting. The attempted murder was done willfully and with deliberation and premeditation if either the defendant or Fernando Morales or both of them acted with that state of mind.... (9 RT 1653-1654; 2 CT 357.) In its instruction on provocative act murder,the trial court instructed the jury with CALCRIM 560: Ifyou decide that the defendantis guilty ofmurder, you must decide whether the murderis first or second degree. To prove the defendant is guilty of first degree murder, the People must provethat: One, as a result of the defendant’s provocative act, Fernando Morales was killed during the commission of attempted, willful, deliberate, and premeditated murder; and Two, defendant intended to commit attempted willful, deliberate, and premeditated murder when she did the provocativeact. In deciding whether the defendant intended to commit attempted willful, deliberated and premeditated murder and whether the death occurred during the commission of attempted murder, you should refer to the 34 instruction I have given on attempted willful, deliberate, and premeditated murder. Any murderthat does not meet these requirements for first degree murder is second degree murder. (8 RT 1676-1677; 2 CT 378-379.) During deliberations,the jury sent the court a note requesting an instruction on second degree murder. The note read, “Is #39 for second degree murder? We need an explanation of 2" degree murder.” (2 CT 405.) Instruction #39 was CALCRIM 570, regarding the lesser included offense ofvoluntary manslaughter based on heat of passion. (2 CT 380-381.) The court responded “No, #39 applies to voluntary manslaughter. See #38 for definition of 2" degree murderin this context.” Instruction #38, CALCRIM 560, referred thejury back to the attempted murderinstruction, allowingthe jury to find Perla premeditated the murder based on Morales’ mental state. (2 CT 405; 9 RT 1802-1804.) A majority of the Court of Appeal concluded that “the trial court’s instructional‘error’ was harmless beyond a reasonable doubt because the evidence before us showsa rational jury would have found Perla personally deliberated and premeditated the attempted murder of Canas.” [Emphasis in original.| (Slip Opn., p. 32.) Although acknowledginginstructional error, the majority stated, “If we were to take a further step and conclude the jury question alone requires 35 reversal of this issue, we would be applying a per se reversible error standard...” The majority also suggested the error was harmless becausethe instructions were correct “as they then existed” (before this Court decided Concha) and that the instructional error did not take “ on additional significance becausethetrial court repeated what wasthen a properinstruction a second time during deliberations in response to a jury question.” (Slip Opn., p. 34-35.) Justice Aaron dissented,finding the trial court’s erroneousinstruction to the deliberating jury in responseto its question onthecritical issue of intent was not harmless beyond a reasonable doubt. (Slip Opn., J. Aaron, conc. & dis., pp. 1-5.) Justice Aaron concludedtheinstructionalerror required reversal because “(1) the jury specifically requested that the trial court provide an instruction on second degree murder; (2) in response, the court provided the jury with an incorrect instruction; and (3) underthe facts of this case, the error in the instruction may haveled the jury to find Perla guilty of first degree murder based on a finding that Morales premeditated and deliberated, and not on a finding that Perla personally premeditated and deliberated.” [Emphasisin original.] (Slip Opn., J. Aaron, conc. & dis., p. 4, n.3.) As Justice Aaron explained, Morales’ conductin stabbing and shooting the victim readily established his premeditation and deliberation. On the other hand, 36 Perla’s conduct of retrieving the rifle was less culpable, making it morelikely that the jury would baseits finding of premeditation on Morales’, not Perla’s, mental state. Given the context in which the error occurred andthe significant disparity in the evidence on the contested issue of Perla’s mental state, the instructional error cannot be deemed harmless beyond a reasonable doubt. B. The Prosecution Must Prove Beyond A Reasonable Doubt That The Error Did No Contribute To The Verdict, A Standard Not Satisfied By A Determination That A Rational Jury Could Find Perla Premeditated and Deliberated This Court has concluded that the “willful, deliberate, and premeditated” allegation is the functional equivalent of an element of a greater offense. (People v. Izaguirre (2007) 42 Cal.4th 126,133; People v. Seel (2004) 34 Cal.4th 535, 548.) Relieving the prosecution ofits burden ofproving an elementofthe offense murderviolates the defendant’s federal (6th and 14th Amendments) and California (Art. I, § 15 and § 16) constitutional rights to trial by jury and due process. (See United States v. Gaudin (1995) 515 U.S. 506, 509-510; Carella v. California (1989) 491 U.S. 263, 270; People v. Flood (1998) 18 Cal.4th 470, 479-480.) Becausethe error implicates the accused’s federal constitutionalrights, the standard announcedin Chapmanv. California (1967) 386 U.S. 18, 24 (Chapman) applies, requiring that the judgmentbe reversed unless the prosecution can prove 37 beyond a reasonable doubtthat the error did not contribute to the verdict. In Chapman,the court held that a prosecutor’s commenton the defendant’s failure to testify in violation of Griffin v. California (1965) 380 U.S. 609, was subject to harmless error analysis. (Chapman, supra, 386 U.S. at p. 22.) The court declined to adopt a standard of reversal per se, stating, “We concludethat there may be someconstitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” [Emphasis added.] bid.) Chapman adoptedthe rule that requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (/d.at p. 24.) Later in Yates v. Evatt (1991) 500 U.S. 391, overruled on other groundsin Estelle v. McGuire (1991), 502 U.S. 62, the high court concluded the Chapman standard of error applied to the trial court’s instruction creating a mandatory rebuttable presumption on an element of the offense. In Yates, the jury in the defendants’ murdercase wasinstructed “that malice is implied or presumed from the use of a deadly weapon.” The trial judge's charge on implied malice constituted an improper mandatory presumption that impermissibly shifted the burden ofproofregardingthe critical intent element ofthe charged offense to the 38 accused. (/d. at p. 400-401.) Yates found the error was not harmless beyond a reasonable doubt under Chapmanbecausethe evidence of the defendant’s intent to kill was not clear. (/d. at p. 412.) Justices Scalia and Blackmum concurred, concluding that it would be impossible to gaugethe effect of the error: “to determine from the ‘entire record’ that the error is ‘harmless’ would be to answer a purely hypothetical question,viz., whether, if the jury had been instructed correctly, it would have found that the State proved the existence of malice beyond a reasonable doubt. Such a hypothetical inquiry is inconsistent with the harmless-error standard announced in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).” (Yates, supra, 500 U.S.at p. 414 (conc. opn. of Scalia, J.).) The Yates majority disapproved language in Rose v. Clark (1986) 478 U.S. 570, 579, that suggested that the Chapman standard of error is met if the reviewing court determines the evidence is sufficient to prove guilt beyond a reasonable doubt. The Yates court found this standard objectionable: “Where a reviewingcourt canfind that the record developedattrial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” (Yates, supra, 500 US. at p. 403, n.8.) 39 This statementis nearly identical to the standard employed by the majority in this case, which asked whetherthe evidencein the record “showsa rational jury would have found Perla personally deliberated and premeditated the attempted murder of Canas.” (Slip Opn., p. 32.) The court in People v. Lewis (2006) 139 Cal.App.4th 874, 887 disapproved a similar standard. After reviewing the decisions in Chapman, Yates and Sullivan v. Louisiana (1993) 508 U.S. 275, the Lewis court concluded: “The test is not whether a hypothetical jury, no matter how reasonableor rational, would render the same verdict in the absence of the error, but whetherthere is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required. The test for harmless error suggested by the People in the present case— whether ‘any reasonable jury would have found the elements of implied malice second degree murder’— is patently incompatible with this standard.” ([bid.) The majority in this case derived this standard from People v. Concha, supra, 182 Cal.App.4th 1072 (Concha I), which in turn relied on the United Supreme Court’s decision in Neder v. United States (1999) 527 U.S.1 (Neder). But as the court in Lewis reasoned, Neder involved application of the Chapman standard to an uncontested element of the offense, not to the contested, central 40 issue ofthe accused’s intent. (People v. Lewis, supra, 139 Cal.App.4th at pp. 887- 888.) In Neder, the court considered whetherthefailure to instruct the jury on the materiality element of the crime of filing false tax returns was subject to a harmlesserror analysis. (/d. at pp. 8-16.) The Government contended that Neder failed to report over five million dollars in income,a violation of 26 U.S.C.A. section 7206(1). The jury was not instructed that it had to find that the false statements were material, a requisite element of the offense. (/d. at p. 6.) The defendantdid not argueattrial that the false statements were not material, instead he argued that the loan proceedshe failed to report did not constitute income and that he relied on the advice of his attorney and his accountantin failing to report the income. (/d. at p. 16-17.) The Neder court held that “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absentthe error, the erroneousinstruction is properly found to be harmless.”(/d. at p.17.) The court saw no difficulty applying a harmlesserroranalysis to “the narrow class of cases like the present one,” involving an entirely uncontested element. (/d. at p. 17, n.2.) “In a case, such as this one, where a defendant did 41 not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” (/d. at p. 18.) The Neder court specifically distinguished instructional error on the uncontested element of materiality, from that of Yates, involving instructional error on “an issue that wasthe crux of the case-the defendant’s intent.” (/d. at p. 17.) This suggests that, under Neder, if instructional error omits the contested element of intent, rarely will such error be held harmless beyond a reasonable doubt under Chapman. This Court in People v. Flood (1998) 18 Cal.4th 470 held that the failure to instruct on an elementof the offense was notstructural error, but was subject to harmless error analysis. In Flood, the defendant was charged with evading a vehicle operated by a peace officer under Vehicle Code section 2800.3. The prosecution must prove, as an elementofthe offense, that the vehicle evaded was operated by a peace officer. The trial court did not instruct the jury they had to find this element of the offense, but told the jury that the people operating the vehicle were “peace officers,” removing this elementofthe offense from thejury’s consideration. (/d. at p. 475.) 42 The court in Flood concluded that the court’s erroneousinstruction on the “peace officer” element ofthe offense wasnotstructural error, and was subject to the Chapman standard of prejudice. (/d. at p. 500.) The court found the error harmless under Chapman, but only becausethe record establishedthat the defense “effectively conceded” the issue; the defendant did not argue the prosecution failed to prove the elementor present any evidence concerning the element; the jury foundthe officer’s were “distinctively uniformed” and their vehicles were “distinctively marked;” and the evidence presented at trial, uncontested by the defense, was that the two people driving the vehicle were peace officers. (/d. at pp. 505-506.) The court in Flood concluded the error was harmless beyond a reasonable doubt, because it concerned “an uncontested, peripheral element ofthe offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant's own actions or mentalstate...” (id. at p. 507.) C. The Instructional Error Was Not Harmless Beyond A Reasonable Doubt. The instructional error in this case doesnot involve a “peripheral issue” as in Flood, or an uncontested issue, as in Neder. It involved an issue central to the case: Perla’s mental state. Under Chapman,the prosecution cannot prove beyond 43 a reasonable doubtthatthe error complained of did not contribute to the verdict obtained. Theerror is also not harmless under the Neder standard ofprejudice, where “the reviewing court must conclude beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelmingevidence, such that the jury verdict would have been the same absentthe error.” (/d. at p.17.) Perla’s mental state was not uncontested, nor was the evidence of her premeditation “overwhelming.” To establish premeditated and deliberate murder, there must be evidence of planning and motive which would in turn support an inferencethat the killing was the result of pre-existing reflection, careful thought and weighing of considerations, rather than an unconsidered or rash impulse hastily executed. (People v. Anderson (1968) 76 Cal.2d 15, 26.) The evidence of Perla’s intent was far from clear, and it wasthecritical, contested issue in the case. At best, the prosecution’s evidence established that Perla was aware of the plan to beat up, not kill, Canas before she drove with Morales to meet up with Canas. (4 RT 601-608.) Perla stood by the car doing nothing when Morales confronted Canas (2 RT 257); if she had planned the murder, she would not have waited to bring out the gun. There was no direct evidence of Perla’s intent; she made no statements at the scene. Her action in 44 handing the gun to Morales could have been the product of an unconsidered or rash impulse hastily executed. The jury could have found Perla guilty based on her aiding and abetting Morales in an assault with a firearm; they found Perla did not discharge the weapon,but only that she used it. (2 C.T. 410-411.) Evidence that Perla premeditated the murder of Canasis far from “overwhelming.” On the other hand, evidence that Morales premeditated and deliberated the lethal attack on Canas was very strong. Morales stabbed Canas and shot him multiple times. (2 RT 261, 272-273.) The jury could easily conclude from this undisputed evidence that Morales’ attempt to kill Canas wasthe result of pre- existing reflection. Because the evidence of Morales’ culpable mental state was strong, and Perla’s was relatively weak, it is more likely the jury, guided by the erroneous instruction, dispensed with the need to find Perla personally premeditated the murder, and based their finding on the strong evidence of Morales’ culpable mentalstate. Evidence of Perla’s intent was contested attrial; it was the main issue for the jury to decide. Defense counsel started his closing summation by arguing that “there is no question this is a circumstantial case and no question that the circumstantial case has to prove what my client’s intent was.” (9 RT 1738.) 45 Defense counsel argued that evenifthejury found she intendedto kill, Perla acted in the heat of passion: “This isn’t cold, calculated, I am goingto dothat.....She is — that’s your rash judgment... The People want you to think she [sic] sitting there like some college coach at a football game going, well that doesn’t work. Let’s go to plan B.” (9 RT 1765-1766.) He argued that Perla did not premeditate: “Then you get to the premeditated, wilfull, and deliberate.... You have to haveall these cold, calculated decisions... It’s not happening.” (9 RT 1767.) Evidence of Perla’s intent was subject to several contradictory reasonable interpretations. As the dissenting Justice pointed out, “in view of the circumstancesin this case, the jury’s request for an instruction on second degree murder was a rational one.” (Slip Opn., p. 5, conc. & dis. opn Aaron,J..) In this case there is no need to speculate about whether a “hypothetical” jury may have applied the erroneousinstruction; the jury’s requestfor instruction on second degree murder informsthat this jury focused on this very issue. At a critical time in their deliberation in which they consideredthe issue,the trial court guided them to the erroneousinstruction. (2 CT 405.) "To perform their job properly andfairly, jurors must understandthe legal principles they are charged with applying ... The jury's request for clarification should alert the trial judge that the jury has focused on whatit believes are the 46 critical issues in the case." (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) "When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy." (Bollenbach v. UnitedStates (1946) 326 U.S. 607, 612-613.) The trial court here directed the deliberating jury to the erroneous instruction in responseto their question on what it believed wasa critical issue in the case, the difference between first and second degree murder. Under these circumstances, the instructional error cannot be deemed harmless beyond a reasonable doubt. Ii. CONCLUSION For the foregoing reason, Perla Gonzalez respectfully requests this Court reverse the murder conviction, or, in the alternative, the true finding that she premeditated and deliberated the murder, and reduce the conviction to murder in the seconddegree. Respectfully submitted, . ) 9 sy Dated: July 13, 2011 a CAECTCKR Ce =~“ /LAURA SCHAEFER or, a Attorney for Appellant — PERLA ISABEL GONZALEZ 47 Certificate of Word Count I, Laura Schaefer, counsel for appellant certify pursuant to the California Rules of Court, that the word countfor this documentis 10,113 words, excluding the tables, this certificate, and any attachment permitted under rule 14(d). This document wasprepared in Word Perfect with 14 point Times New Romanfont, and this is the word count generated by the program for this document. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed this 13th day ofJuly, 2011, at San Diego, California. LZ URA SCHAEFER “—~ Attorney for Appellant PERLA ISABEL GONZALEZ People v. Gonzalez Supreme Court Case No. $189856 Proof of Service I, the undersigned, say: I am overeighteen years of age, a resident of the County of San Diego, State of California, not a party in the within action, my business address is 934 23rd Street, San Diego, County of San Diego, State of California 92102; on this date J mailed the APPELLANT’S OPENINGBRIEF ON THE MERITS,addressed as follows: Office of the Attorney General 110 West A Street, Suite 1100 Post Office Box 85266 San Diego, CA 92186-5266 Appellate Defenders, Inc. 555 West Beech Street, Suite 300 San Diego, CA 92101 Clerk of the Superior Court for: Hon. Michael A. Knish San Bernardino County 17780 Arrow Highway Fontana, CA 92335 Carolyn Youngberg, Esq. Deputy District Attorney 8303 Haven Avenue, 4" Floor Rancho Cucamonga, CA 91730 Perla Isabel Gonzalez X36162 P.O. Box 1508 Chowchilla, CA 93610 Sean O’Connor, Esq. 10535 Foothill Blvd., Suite 300 Rancho Cucamonga, CA 91730 Court of Appeal Fourth Appellate District, Div. 1 750 B Street, Suite 300 San Diego, CA 92101 The above copies were deposited in the United States mail, first class postage prepaid, on July 13, 2011, at San Diego, California. I certify under penalty of perjury that the foregoingis true and correct. Executed July 13, 2011, at San Diego, California.