PEOPLE v. SMITH

Respondent’s Reply to Supplemental Brief

Cal.June 30, 2014

KAMALA D, HARRIS State of California Attorney General DEPARTMENTOFJUSTICE 110 WEST A STREET, SUITE 1100 SAN DIEGO, CA 92101 P.O. BOX 85266 SAN DIEGO, CA 92186-5266 Public: (619) 645-2001 Telephone: (619) 645-2106 Facsimile: (619) 645-2191 E-Mail: Kathryn.Kirschbaum@doj.ca.gov June 25, 2014 SUPREME COURT Frank A. McGuire PILED Court Administrator and Clerk 350 McAllister Street JUN 3.0 2044 Supreme Court of California San Francisco, CA 94102 Frank A. McGuire Clerk RE: People v. Vince Bryan Smith Deputy California Supreme Court, Case No. 8210898 Fourth Appellate District, Division One, Case No. D060317 Riverside County Superior Court, Case No. BAF004719 Dear Mr. McGuire: In its May 14, 2014 order, this court ordered the parties to submit simultaneous reply briefs to the supplemental letter briefs filed by the parties. In appellant’s supplemental letter brief (ASLB), he argued: (1) the portion of CALCRIM No.402 requiring the nontarget crime not to have been committed for a reason independentof the common plan to committhe target offenses is an incorrect statement of law (ASLB 2); (2) CALCRIM No.402 as a whole is an incorrect statement of law to the extent that it allows an aiding and abetting defendantto beliable for the reasonably foreseeable nontarget crimes committed by any “co-participant”to the target offense (ASLB 11); and (3) the murders in this case may or may not have been committed for a reason independent of the commonplan to committhe target offenses (ASLB 15). Respondentagrees the jury should not have been required to find that the nontarget offense was not committed for an independent reason; however,the errordid not prejudice appellant as it inured to his benefit. An analysis of the balance of CALCRIM No.402 is outside of the scope of this court’s order, but, in any event, appellant’s concerns regarding the instruction as a whole are without merit. Finally, assuming the jury was correctly instructed, because the jury’s finding that the murders were not committed for an independent reason was supported by the evidence, appellant’s convictions should be affirmed. Frank A. McGuire Court Administrator and Clerk Page 2 With respect to the portion of CALCRIM No. 402 at issue, appellant and respondent both agree the jury was erroneously instructed that it must find the nontarget offense was committed for a reason independent of the commonplan to commit thetarget offenses. Both parties agree that determining liability ultimately hinges on the foreseeability of the nontarget offense; the “reason” for committing that offenseis, at most, one relevant factor toward that determination. As appellant notes, courts of appeal have rejected prior attempts by defendantsto “engraft” language nearly identical to the languageat issue here from jury instructions pertaining to conspiracy cases onto instructions pertaining to aiding and abetting. (ASLB2, citing People v. Brigham (1989) 216 Cal.App.3d 1039 (Brigham).) As the Brigham court stated, in the context of aiding and abetting, such instructionsare “foreign”to the law of aider and abettor liability becausethe “ultimate factual question” in determiningliability is simply whether the nontarget offense was reasonably foreseeable. (Brigham, supra, 216 Cal.App.3d atp. 1050.) Asthe court succinctly stated, “A subjective inquiry as to whether the . perpetrator’s committed crime wasthe ‘independent product’ of his mind, soasto lead to exculpation of the aider and abettor on that basis, is improper becausethe ultimate factual determination of the jury asto the liability of an aider and abettor is based instead on an objective analysis of causation; i.e., whether the committed crime wasthe natural and probable consequence ofthe principal’s criminal act the aider and abettor knowingly encouragedor facilitated.” (/d. at p. 1051.) While the parties agree the languageat issue wasincorrect, the issue of prejudice is disputed. Appellant argues reversal is necessary (see ASLB 10-11) butfails to explain how the erroneousinstruction could not have inuredto his benefit at trial, as it required the jury to make an unnecessary, additional finding beforeit could find him guilty. (See People v. Santana (2013) 56 Cal.4th 999, 1011; see also People v. Dayan (1995) 34 Cal.App.4th 707, 717 [‘‘That the trial court here gave an instruction beneficial to the defendant does not provide him with a reason to complain on appeal”].) Here, in order to convict appellant, the jury had to find not only that the murders were reasonably foreseeable, but a/so that they were not committed for an independent reason. Because the erroneous language benefitted appellant, his convictions should be affirmed. Appellant next argues CALCRIM No.402, as a whole, misstates the law pertaining to the natural and probable consequences doctrine becauseit allowed the jury to convict him “‘if the fatal shots were fired by anyone in the crowd that assembled to watchthe fight.” (ASLB 11.) A consideration of CALCRIM No.402,in its entirety,is outside the scope of the court’s order for supplemental briefing. However, in any event, appellant’s argumentis incorrect. Underthe instructions given to the jury, the jury could not have convicted appellant if the shots were fired by someone who was merely there to watch; rather, the shots must have been fired by a “co-principal,” defined as either a Frank A. McGuire Court Administrator and Clerk Page 3 perpetrator or an aider and abettorto the target offense. (41 RT 8283.) Thus,the jury must have found that the shooter wasnot only there to watch, but was present with knowledge ofthe target crimes and with the intent to assist with, encourage,or facilitate the commission of those offenses. In short, the jury had to have foundthat the nontarget offense was committed by one whoeither directly committed, or aided and abetted in the commission of, the target offense; attending the fight “to watch” only, without the requisite intent, would have been insufficient. Appellant’s larger point appears to be that evenifthe nontarget crime was committed by a co-principal (as opposed to someone whodid notaid and abetthe target offense), he still should not be liable. (See ASLB 12.) This argument, which is essentially a reiteration of appellant’s central claim from his Brief on the Merits, must also be rejected as a misunderstanding of the underpinningsofthe natural and probable consequencesdoctrine. While the natural and probable consequences doctrine may have commonlaw origins, in California, the doctrine is irrefutably tethered to Penal Code section 31. (See People v. Prettyman (1996) 14 Cal.4th 248, 292 (Prettyman)[citing to Penal Code section 31 as the “statutory authority undergirding the natural and probable consequence theory of accomplice liability”].) Penal Code section 31 defines “principals” to a crime as “[a]ll persons concerned in the commission of a crime” whether they “directly commit the act constituting the offense, or aid and abet in its commission... .” Penal Code section 31 thus answers the question ofwho should be held liable for a target crime in exceedingly broad terms: all those “concerned”are liable. Despite this, appellant argues that in the context of the natural and probable consequencesdoctrine, a principal to the target offense should only beliable for the foreseeable nontarget crimes committed by some, but notall, of those concernedin the target offense. This argument, though, runs counter the underlying purpose of section 31, whichis to ensurethat liability attachesto all those concerned in the commission of a crime, and to the underlying purposeofthe natural and probable consequences doctrine, which is to hold defendantsliable “for the criminal harms they have naturally, probably and foreseeably put in motion.” (Prettyman, supra, 14 Cal.4th at p. 260, quoting People v. Luparello (1986) 187 Cal.App.3d 410, 439.) Moreover, as set forth more fully in Respondent’s AnswerBrief on the Merits (RABOM), application of appellant’s version of the natural and probable consequences doctrine would be unworkable becauseit would require the sort of fine-toothed parsing amongparticipants to an offense this court has explicitly declared to be unnecessary when determiningliability as a principal. (RABOM 26, 2933; People v. McCoy (2001) 25 Cal.4th 1111, 1120.) In short, appellant’s jury was Frank A. McGuire Court Administrator and Clerk Page 4 properly instructed that if appellant was a principalto the target offense, he wasliable for the reasonably foreseeable crimes committed by any other principal. Appellant suggests more is required and argues there must be a “relationship” between the aider and abettor and the direct perpetrator in order for the one to beliable for the other’s acts. (ASLB 5, 12, 14, 16-17.) But the requisite “relationship” in the context of the natural and probable consequencesdoctrineis that, as co-principals, both appellant and the shooter joined together for the purpose ofcommitting the target crime. Assuch, eachis liable for the other’s acts so long as they are reasonably foreseeable. Finally, with respect to the “independent reason”portion of the instruction, appellant posits that even if the instruction were correct, there was no way of knowing whether the murders were committed for an independent reason because there was no way of definitively knowing whofired the fatal shots. (ASLB 15.) Appellant, however, admits that there were “possible reasons why the shooting was connected to the ‘common plan.’” (ASLB 15.) This court’s question was whether there was “evidence in the record to support a jury finding that the murders of this case were not committed for a reason independent of the commonplan to commit the disturbing the peace or assault or battery.” By acknowledging that there were possible reasons why the murders were connectedto the common plan, appellant appears to concede such evidence was present. His additional contention that the ultimate “reason”for the shooting cannot be knownbecause the identity of the shooter or shooters cannot be definitively knownis of no avail. The bottom line is, the shots were fired by one or more of the gang members who assembled for the specific purpose of (at a minimum)facilitating, assisting with, or encouraging a battery. There was no evidence from any ofthe parties that the shots were fired by disinterested bystander or by anyone unconnected with the target jump out. Evenif there were, the requirement that the murders were committed by a “co-principal” meantthat the jury could not find appellant guilty if it found that the murders were committed by such an individual. Rather, the fact that all of the evidence indicated the shooter was a principal to the target crime combined with the timing of the shots — immediately after appellant pulled his brother from the fight and swungat another participant — serves as strong circumstantial evidence that the shooter’s reason for firing was not “independent” but was instead directly related to the common plan to committhe target offenses. Frank A. McGuire Court Administrator and Clerk Page 5 Accordingly, appellant’s convictions for second degree murder should be affirmed. Sincerely, Adhyn Knackbaurn KATHRYN KIRSCHBAUM Deputy Attorney General State Bar No. 279694 For Kamala D.Harris Attorney General “KK:dw §$D2013806623 809 15026.doc DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Smith No.: S8210898 I declare: I am employed in the Office of the Attorney General, whichis the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On June 27, 2014, I served the attached REPLY BRIEF TO SUPPLEMENTAL LETTER BRIEFbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Paul Zellerbach District Attorney — Riverside 3960 Orange Street Riverside, CA 92501 Clerk of the Court For the Honorable Patrick F. Magers Riverside County Superior Court 4100 Main Street Riverside, CA 92501 California Court of Appeal Fourth Appellate District, Division Two 3389 12" Street Riverside, CA 92501 and, furthermore | declare, in compliance with California Rules of Court, rules 2.25(1)(1)(A)-(D) and 8.71 (£)(1)(A)-(D),I electronically served a copy ofthe above document from Office of the Attorney General's electronic service address ADIEService@doj.ca.gov on June 27, 2014 to Appellate Defenders, Inc.'s electronic service address eservice-criminal@adi-sandiego.com and to Appellant's attorney Gregory L. Cannon's electronic service address by 5:00 p.m.on the close of business day at cannon135635@gmail.com. I declare under penalty of perjury underthe lawsof the State of California the foregoingis true and correct and that this declaration was executed on June 27, 2014, at San Diego, California. D. Wallace KV Ylnwe or[ Declarant Signature $D2013806623 80916164.doc