NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1138356)
Defendant Juvenal Angel Reyes was sentenced to a term of life in prison without parole after a jury found him guilty of burglary, as well as of kidnapping to extort and to rob, torture, assault with a deadly weapon, criminal threats, robbery of an inhabited place committed in concert, and grand theft person. It began when Reyes remarked to three day laborers that the neighbor, Gary Wise, was rich. The group discussed a plan to burglarize Wise's house while he was out. Reyes was not present during the burglary when his coparticipants changed the plan and ambushed Wise, then beat and tortured him for the codes to his safes. The jury was instructed that if it found Reyes guilty of the burglary as a coconspirator or as an aider and abettor, it could find him guilty of the other charges under the natural and probable consequences doctrine.
On appeal, Reyes contends the trial court failed to properly instruct the jury in several key areas, including on the subjects of (1) specific intent required in order convict under an aiding and abetting theory on six of the eight counts, (2) proximate causation and the impact of a superseding event on aider and abettor liability under the natural and probable consequences doctrine, and (3) coconspirator liability when a fresh and independent plan emerges unbeknownst to the defendant. He further contends that insufficient evidence supported the instruction on coconspirator liability. Reyes asserts that if properly instructed, the jury could not have found him guilty of kidnapping to extort, kidnapping to rob, torture, assault with a deadly weapon, criminal threats, or robbery of an inhabited place committed in concert.
We shall affirm. The record reflects that the trial court properly instructed the jury on the target crime of burglary, and on the nontarget crimes of kidnapping, torture, assault, and criminal threats, under the natural and probable consequences doctrine applicable to the aiding and abetting and conspirator theories of liability.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gary Wise returned to his house in a rural, unincorporated area of Gilroy around 9:15 p.m. on February 6, 2011. When he entered the house, three men attacked him. They beat him using the heavy end of the pool cues from his pool table for what he estimated was about 20 minutes. He was unable to see out of his right eye and his left eye was filling with blood. Wise thought he was dying.
The men carried him to his kitchen, zip-tied his feet together, and tied him to a chair. They later placed him in front of one of two gun safes in the family room and, in English, demanded the combination. One of the men held a pistol. A man pulled his head back while another loaded a bullet and put the gun barrel in Wise's mouth, saying " 'Mother fucker, if you don't give me the combination, you'll never see your son again.' " Wise's son was seven years old. Once the safe was open, the men placed a towel over Wise's head and poured a burning liquid over his eyes. He heard the men emptying the safe, which held his collection of guns from several family generations.
Other than a few key phrases, the men were speaking Spanish, which Wise did not understand.
The men moved Wise to the second safe. At first he resisted giving the combination, hoping to preserve the unique collection of valuables that he was keeping for his son and daughter. One of the men repeatedly struck Wise in the kidneys, then the groin, using the heavy end of an unscrewed pool cue, then put a needle-nosed plier in Wise's nose and squeezed. He relented and heard the men filling bins with items from the second safe and ripping the 60-inch television off the wall, along with several other televisions.
After the house went quiet, Wise eventually hobbled the chair to the kitchen and cut through his bindings. It was by then about 4:30 a.m. There was no landline in the house and Wise could not find his wallet, cell phone, or keys. His truck was gone. He walked up the driveway about a quarter-mile, falling because by then he could not see out of either eye, until he reached the house of his neighbor, Rose Diaz.
The beating left Wise blind in one eye, almost deaf in one ear, and with 20 percent of vision in the other eye and 30 percent of hearing in the other ear. He suffered injuries to his chest, side, and legs. Wise recognized Reyes at trial from a garage sale but otherwise confirmed that Reyes had not been in his home.
Diaz had known Reyes for over 20 years, as he lived close by and often helped around her property. Diaz and her husband would lend Reyes money, who like other farmers went "broke" every winter, and he paid them back each time. He was a good friend and neighbor. She did not care much for Wise, who was loud and crude and bragged about his collectibles. Diaz answered a "[b]ig knock" at her door at about 4:30 on the morning of the incident and recognized Wise's voice. He told her that three Mexicans had waited in his house and had beaten him. He had "a little blood on him" and "could have been a little bit swollen." Diaz brought Wise inside and called 911.
The prosecution later introduced impeachment evidence based on an excerpt of a video interview that Diaz gave to news media that day. In the clip played for the jury, Diaz stated in part, " 'Oh, let me tell you when I opened that door—oh, I got the shock of my life. I thought I was seeing a movie that—you know where they have those scary people that look at you? He looked so bad. He looked so bad.' "
California Highway Patrol officers discovered Wise's truck off a highway in Santa Cruz County that morning. It was burning and "beyond recognition other than just the meat and potatoes of the body." A sergeant with the Santa Clara County Sheriff's office testified about the evidence found at the crime scene, including blood, soap and liquid bleach, and broken pool cues.
Detective Julian Quinonez was the primary investigator. He spoke with Diaz on the morning of the incident. When he arrived at her house, she was with her husband and Reyes, who was sweeping the back patio. Reyes was not a suspect at that time. Quinonez spoke with him in Spanish. Reyes explained that he had come over to see if Ms. Diaz was okay. He knew who Wise was but said he had not seen or heard anything the night before. He said nothing about the burglary.
About a month later, a citizen informant gave Quinonez a telephone number that one of the suspects was using at the time of the crime. The informant indicated that the suspects had learned about Wise's residence through a neighbor, and mentioned among others the residence occupied by Reyes. Quinonez visited Reyes, who asked if they had caught the robbers. He appeared to relax when Quinonez said they had not. Quinonez stated his concern that the robbers might come back, and Reyes replied, " 'Oh, those guys aren't gonna come back.' " Quinonez asked Reyes to call him if he remembered anything and confirmed Reyes's cell phone number. The call detail records from the suspect telephone number showed three connections to Reyes's cell phone on the date of the incident.
Developments in the investigation led eventually to three primary suspects: Ernesto Gonzales, Juan Fonseca, and Norberto Serna. On May 3, 2011, Sergeant Quinonez's teams executed search warrants at four different residences associated with the suspects, including Reyes. Some of Wise's property was recovered at two of the search locations; the search of Reyes's residence did not uncover stolen property. A few weeks later, Gonzales's wife informed Quinonez of an irregularity in the carpet of the apartment that she had been sharing with Gonzales and Fonseca, her brother-in-law. The resulting search uncovered the stolen firearms and some silver pieces underneath the floorboards over the garage. Quinonez testified that during the month leading up to May 3, Gonzales was under continuous surveillance but had not been seen visiting or meeting with Reyes. Gonzales's ex-wife testified that she had never seen Reyes and did not know who he was.
Gonzales's ex-wife testified at trial under an order granting use immunity. Gonzales had sent her on two occasions in March to sell coins to pawn shops. She also heard Serna demand his "stuff" from Gonzales, and Gonzales respond that he would have to wait. Gonzales became angry and violent with her when she asked questions. Gonzales and Fonseca installed a lock in the apartment garage and forbid her from entering.
Detectives contacted Reyes on the day of the searches, informed him that they had a warrant to search his property, and transported him to a substation sheriff's office. Sergeant Herman Leon spoke with Reyes in a recorded interview. Reyes was not yet under arrest. Leon testified that Reyes initially denied involvement in the robbery and assault of Wise. About an hour into the five-hour interview, Reyes began to describe his role. He eventually recounted a conversation with Rose Diaz in which she commented about life not being fair: here they were struggling to make ends meet while Wise—" 'that man has millions.' " Reyes had made a similar comment to Serna, Gonzales, and Fonseca during a break in work. Reyes had known Serna for about 20 years. He had only met Gonzales and Fonseca that week when Serna brought them to one of the ranches for work.
Leon testified that he advised Reyes of his rights, and Reyes "declined that."
When Reyes mentioned Wise's " 'millions,' " the conversation turned to plotting a burglary. As summarized by Leon, the plan was for the men to enter at night through the back entrance and to use metal bars to open the safe or safes. Someone was to keep watch on Wise to make sure he was away from the home when they broke in. Reyes mentioned that Wise had an alarm system, and Gonzales said it was not a problem. Reyes was not to go in the house, though he was supposed to get a cut. There was never an amount specified because no one knew what would be in the safes. On another day when the men came to Reyes's property, he sent them away and told them not to return. He believed they were drinking and loitering, and he had become leery of them. Reyes told Leon that either the third day or third time he saw the other three men, he told them " 'Forget about it.' "
On the day of the robbery, Reyes was at home barbecuing and socializing with a friend. Serna called him and told him that they were watching Wise, who had left his house. Reyes reported to Leon that he told Serna that he did not care, just to forget about it, and ended the phone call. Reyes heard from the group again around 9:00 p.m. when Gonzales called him asking for a blow torch. Reyes understood that they were in Wise's house trying to open the safe. He saw Serna's red truck parked on his (Reyes's) property. Reyes said that he did not have one. Gonzales said " 'Serna says you have one,' " and Reyes responded that he did not and told him to forget about it. He ended the call and continued with his barbecue. Reyes did not try to stop the burglary.
Reyes learned about the beating sometime the next day. A few days later, he talked with Serna and confronted him about the beating and the burning of Wise's truck. Serna was concerned that they might be cheated by Gonzales and Fonseca, and said he would kill them. Reyes told Serna not to be dumb about it, as he believed Fonseca and Gonzales might be associated with a drug cartel that would retaliate. Reyes denied to Leon that he ever pressed Gonzales for his cut, though the call detail report showed Reyes was making calls to Gonzales's phone until the time the phone was disconnected.
Reyes explained to Leon that he never told Sergeant Quinonez what he knew because he was afraid; he knew that he faced arrest and was worried about the crops he had recently planted, workers he had hired, and debt he had taken on. Leon testified that Reyes expressed guilt and remorse, and was angry with Serna over what had occurred. Reyes explained that the plan was to commit the burglary when Wise was gone, and any changes to that plan had occurred without his knowledge. He agreed with Leon that he was feeling "burned" or "cheated" by Fonseca and Gonzales. He expressed remorse for not providing the blow torch, because he believed that if he had, the men might have been able to open the safes, so Wise would not have been harmed.
The Santa Clara County District Attorney charged Reyes, Gonzales, Fonseca, and Serna with felonies committed against Wise on February 6, 2011. Reyes was charged by information filed on May 30, 2013, with the following 10 counts: kidnapping to commit extortion (Pen. Code, § 209, subd. (a); count 1); kidnapping to commit robbery (§ 209, subd. (b)(1); count 2); torture (§ 206; count 3); assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1); count 4); criminal threats (§ 422; count 5); first degree robbery in an inhabited place committed in concert with Gonzales, Fonseca, and Serna (§§ 211, 213, subd. (a)(1)(A); count 6); first degree burglary (§§ 459, 460, subd. (a); count 7); grand theft person (§§ 484, 487, subd. (c); count 8); theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a); count 9); and arson of property of another (§ 451, subd. (d); count 10).
Unspecified statutory references are to the Penal Code.
The trial court later granted the prosecution's request at trial to require the jury to make a special finding of great bodily injury in connection with count 1. Defense counsel objected that the great bodily injury finding "significantly changes Mr. Reyes' exposure in the sense that it makes it a life-without-parole charge."
The information initially alleged an enhancement for personal use of a handgun as to counts 4, 5, and 6, which the prosecution later struck as inapplicable to Reyes.
Reyes pleaded not guilty and denied the allegations. He was tried separately. The defense presented no witnesses and rested after the close of the prosecution's case.
Prior to submission of the case to the jury, the trial court denied a defense motion pursuant to section 1118.1 for acquittal based on insufficient evidence. The court found, as to the uncharged conspiracy, that whether Reyes affirmatively withdrew from the conspiracy prior to any overt act was a question of fact for the jury, based on the evidence of his statements to Sergeant Leon and requiring a determination about his credibility and motive at the time. The court also found that whether the other crimes could be deemed natural and probable consequences of the plan to commit burglary was a question for the jury.
The court noted that if it were a decision for the court, it would deny the motion. It reasoned that the likelihood of a homeowner coming home and interrupting a burglary in progress is not unusual, and "I don't think it's all that unforeseeable or unreasonable to expect that violence in an attempt to accomplish the original goal, which is to take the property out of the safe, as in this case, is likely to ensue. [¶] The fact the victim resisted is certainly foreseeable. And excessive—the incredible force that was used, as described by Mr. Wise, would follow."
The trial court instructed the jury on two possible theories for the charged offenses: aider and abettor liability and coconspirator liability. The court further instructed the jury on the natural and probable consequences doctrine under each of these theories. We will discuss the court's instructions in detail below.
In closing argument, the prosecutor reiterated these two theories and argued that either, or both, could support a guilty finding for the crimes against Wise. The defense attorney argued that residential burglary was the only crime charged for which Reyes could be found guilty. She asked the jury to "commit [Reyes] to that count" under an aiding and abetting theory and to acquit him of all other charges based on his withdrawal from the conspiracy and the fact that the violent acts committed against Wise were not "natural, probable, and foreseeable" based on the plan to ensure that Wise was not home during the burglary.
The jury returned a guilty verdict on counts 1 through 8. The trial court sentenced Reyes to a term of life in prison without parole on count 1, kidnapping to extort, and a consecutive term of four years on count 7. The court stayed the sentence on the remaining counts pursuant to section 654. Reyes timely appealed.
Reyes challenges his convictions for kidnapping to rob and to extort, torture, assault with a deadly weapon, criminal threats, and robbery in concert (counts 1-6) on grounds of instructional error and contends there was insufficient evidence to support an instruction on coconspirator liability. Reyes argues that the jury instructions on derivative liability for the nontarget offenses were prejudicially flawed in several respects. First, he argues the trial court committed reversible error when it failed to instruct the jury on the specific intent required to convict him as a direct aider and abettor for each of the nontarget crimes. Next, he argues the trial court issued a flawed instruction on the natural and probable consequences doctrine because it failed to instruct on whether a superseding cause had broken the chain of causation. He similarly argues the trial court should have instructed that guilt under a conspiracy theory of liability was not possible if the coconspirators' crimes were a "fresh and independent product of the minds of those committing them, outside of . . . the common design" of the conspiracy. Moreover, he argues it was error for the trial court to instruct on coconspirator liability due to insufficient evidence.
A. RELEVANT PROCEDURAL BACKGROUND: THE CHALLENGED INSTRUCTIONS
The trial court instructed the jury on aider and abettor and conspirator liability. Based on CALCRIM Nos. 400 and 401, the court first addressed guilt as an aider and abettor, as follows: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor."
After instructing the jury on factors that it could consider, such as if the defendant was present at the scene of the crime or failed to prevent the crime, and on the People's burden to prove that the defendant did not withdraw, the court instructed the jury on the natural and probable consequences doctrine with respect to the nontarget offenses.
The trial court gave CALCRIM No. 402, as follows: "The defendant is charged in Count 7 with Burglary and in Counts 1-6 and 8-10 with other crimes. [¶] You must first decide whether the defendant is guilty of Burglary. If you find the defendant is guilty of this crime, you must then decide whether he is guilty of the other crimes. [¶] Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
"To prove that the defendant is guilty of other crimes, the People must prove that: [¶] 1. The defendant is guilty of Burglary; [¶] 2. During the commission of the burglary, a coparticipant committed one or more of the other crimes. [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of one or more of the other crimes was a natural and probable consequence of the commission of the Burglary. [¶] . . . [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the one or more of the other crimes was committed for a reason independent of the common plan to commit the Burglary, then the commission of the other crime or crimes was not a natural and probable consequence of Burglary."
The instruction on the uncharged conspiracy read in relevant part: "The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy. [¶] To prove that the defendant was a member of a conspiracy in this case, the People must prove that: [¶] 1. The defendant intended to agree and did agree with one or more of (Ernesto Gonzales, Juan Fonseca, and Norberto Serna) to commit Burglary; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit Burglary; [¶] 3. The defendant, or Ernesto Gonzales, Juan Fonseca, and Norberto Serna, or all of them committed the following overt act to accomplish Burglary: travelled to Gary Wise's home on Rucker Avenue in Gilroy; [¶] AND [¶] 4. This overt act was committed in California."
"A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan.
"To prove that the defendant is guilty of the crimes charged in Counts 1-10, the People must prove that: [¶] 1. The defendant conspired to commit the following crime: Burglary; [¶] 2. A member of the conspiracy committed one or more of the other crimes charged to further the conspiracy; [¶] AND [¶] 3. One or more of the other crimes were natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit. [¶] The defendant is not responsible for the acts of another person who was not a member of the conspiracy even if the acts of the other person helped accomplish the goal of the conspiracy. [¶] A conspiracy member is not responsible for the acts of other conspiracy members that are done after the goal of the conspiracy had been accomplished."
The trial court then instructed the jury, based on CALCRIM No. 420, on the prosecution's burden to prove that Reyes did not withdraw from the conspiracy, before any overt act was committed, by "truly and affirmatively reject[ing] the conspiracy and communicat[ing] that rejection, by word or by deed, to the other members of the conspiracy known to the defendant." The court also clarified for the jury that Reyes was "not actually charged with conspiracy in this case." After each set of instructions on aiding and abetting and conspiracy, the court directed the jury to refer to the separate instructions that it would give on each particular crime.
B. REVIEWABILITY OF THE INSTRUCTIONS AND STANDARDS OF REVIEW
Reyes contends that appellate review is appropriate despite his trial counsel's failure to object to the challenged instructions. He relies on the basic premise that the trial court in a criminal case has the duty to instruct the jury correctly " ' "on the general principles of law relevant to the issues raised by the evidence." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) These are " ' "those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (Ibid.) The duty to instruct sua sponte serves "broader interests" in that it "prevents the 'strategy, ignorance, or mistakes' of either party from presenting the jury with an 'unwarranted all-or-nothing choice,' encourages 'a verdict . . . no harsher or more lenient than the evidence merits' [citation], and thus protects the jury's 'truth-ascertainment function.' " (Id. at p. 155.) Section 1259 reinforces this policy by providing, in relevant part, that the appellate court may review "any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)
The People agree that Reyes's contentions are reviewable to the extent that the pertinent instructions incorrectly stated the law, affecting his substantial rights. But to the extent that Reyes actually seeks a pinpoint instruction specifically related to the facts supporting his defense or a legal issue in the case, the People assert those claims of instructional error are now forfeit. "A defendant is entitled to a pinpoint instruction, upon request, only when appropriate. [Citation.] 'Such instructions relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.' " (People v. Gutierrez (2009) 45 Cal.4th 789, 824 (Gutierrez).)
We must decide as to each claimed instructional error whether the failure to object forfeits the issue here. (People v. Anderson (2007) 152 Cal.App.4th 919, 927 ["Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights."].) If the claimed error affected Reyes's substantial rights, the question becomes "whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818." (Ibid.; accord People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407 (Ocegueda).) This requires a determination whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, at p. 836.) "The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law . . . and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury's consideration." (People v. Posey (2004) 32 Cal.4th 193, 218.)
1. Instructions on the Six Nontarget Felonies Did Not Require Additional Instruction on Specific Intent
Reyes asserts that the trial court's aiding and abetting instruction, viewed alongside the particularized instruction for each of the six nontarget felonies of which he was convicted, failed to direct the jury that in order to convict, it had to find the defendant had the same requisite intent as the perpetrator of the crime. For example, concerning count 1, Reyes contends that the combination of CALCRIM No. 401 for aiding and abetting, and CALCRIM No. 1202 for kidnapping for extortion (§ 209, subd. (a)), failed to properly instruct the jury on the specific intent to kidnap for extortion. He argues that the instruction according to CALCRIM No. 401 failed to direct the jury that it had to find the defendant's intent was the same as required for the direct perpetrator of the kidnapping to extort. He further argues that the trial court erred in instructing the jury to decide the fact of whether the defendant "held or detained the other person" (CALCRIM No. 1202, Alternative 2A) as opposed to that he "intended to hold or detain the other person" (CALCRIM No. 1202, Alternative 2B). He argues that because he did not actually hold or detain Wise, the trial court should have instructed the jury on the alternative version for that element of the kidnapping to extort offense.
Section 209 states in relevant part: "Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, . . . ." (§ 209, subd. (a).)
Reyes repeats essentially the same argument in connection with the instructions given for kidnapping for robbery (§ 209, subd. (b)), torture (§ 206), assault with a deadly weapon (§ 245, subd. (a)), criminal threats (§ 422), and robbery in concert (§ 213, subd. (a)(1)(A)). He asserts that, in combination, the instruction for aiding and abetting and the pattern jury instruction for each select offense allowed the jury to convict without the necessary factual finding to support the intent element of each offense. If true, this would implicate Reyes's substantial rights and warrant review of the asserted instructional errors. (Ocegueda, supra, 247 Cal.App.4th at p. 1407; see also People v. Chun (2009) 45 Cal.4th 1172, 1201 [instructional error regarding elements of the offense requires reversal unless reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict].)
Reyes's argument is flawed from the outset. The trial court in this case unambiguously instructed the jury according to aider and abettor liability under the natural and probable consequences doctrine for all but the target offense of burglary.
As detailed above, the court gave CALCRIM No. 401 to address the charge of aiding and abetting the intended crime. The court then gave CALCRIM No. 402, directing the jury to "first decide whether the defendant is guilty of burglary" as charged in count 7, and "[i]f you find the defendant is guilty of this crime, you must then decide whether he is guilty of the other crimes" as charged in counts 1 through 6 and 8 through 10. There followed the instruction on natural and probable consequences.
By arguing that the trial court failed to instruct on the intent required for guilt as an aider and abettor of the nontarget offenses, Reyes confuses the requirements underlying what our Supreme Court has called "two distinct forms of culpability for aiders and abettors." (People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu).) These are as follows: "First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' " (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) Thus, "[a]n aider and abettor is guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime." (People v. Smith (2014) 60 Cal.4th 603, 611 (Smith).)
Both forms of culpability reflect the principle that " '[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, . . . are principals in any crime so committed.' " (McCoy, supra, 25 Cal.4th at pp. 1116-1117.) Yet only the first requires the aider and abettor to share the mental state of the perpetrator. In contrast, " 'aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.' " (Chiu, supra, 59 Cal.4th at p. 164, italics added.)
Here, the trial court properly instructed the jury to decide first if Reyes was guilty of burglary, then to decide if he was guilty of the other crimes under the natural and probable consequences doctrine. The prosecutor reinforced this culpability sequence in closing. He argued, "did [the defendant] conspire to commit a burglary? Yes. . . . Is he guilty under an aiding and abetting theory of the burglary? Yes, because he didn't do anything to stop it. [¶] Now, why is he guilty of everything else? What we're going to talk about is natural and probable consequences." Reyes does not suggest the jury was misdirected or otherwise misled into considering a theory of direct aider and abettor liability for the nontarget offenses, as opposed to the theory of natural and probable consequences. Insofar as the discussion of mental state in McCoy pertained to aider and abettor guilt of intended crimes (McCoy, supra, 25 Cal.4th at p. 1118 ["outside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator"], italics added), Reyes's reliance on that principle is misplaced.
Indeed, the court in McCoy disclaimed, "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." (McCoy, supra, 25 Cal.4th at p. 1117.)
We conclude that the trial court did not err in instructing on aider and abettor culpability under the natural and probable consequences doctrine for the "other" or nontarget offenses without requiring a finding that the defendant's intent was the same as that of the perpetrator. Given the distinction between a defendant's subjective mental state, required in order for that person to aid and abet an intended crime, and the objective factors that must exist in order for a defendant to aid and abet an unintended but reasonably foreseeable crime, any such instruction would have reflected an incorrect and potentially misleading statement of the law.
2. Instruction on Natural and Probable Consequences Doctrine Did Not Usurp the Jury's Factfinding Role Regarding the Foreseeability of the Unintended Acts
Reyes challenges his convictions for the six nontarget offenses on another ground. He asserts that the trial court prejudicially erred when it instructed the jury on the natural and probable consequences doctrine without also directing the jury to consider if a superseding cause had broken the chain of causation. He argues that the defense's theory of the case was based on evidence showing the burglary plan entailed surveillance to ensure Wise's absence, but Gonzales, Fonseca, and Serna independently changed the plan when they decided to ambush Wise and force disclosure of the codes to the safes. Reyes was not present or informed and thus had no opportunity to dissuade them or withdraw. He maintains that a reasonable person in his position would not have foreseen the acts of violence against Wise. Given the evidence supporting this theory, Reyes contends the trial court was required to instruct on superseding causation, even absent a request by the defense, due to its bearing on the determination of reasonable foreseeability within the meaning of the natural and probable consequences doctrine.
The legal principles governing aider and abettor liability under the natural and probable consequences doctrine are well established. The California Supreme Court summarized these principles in Smith, supra, 60 Cal.4th at page 611: "A consequence that is reasonably foreseeable is a natural and probable consequence under this doctrine. 'A nontarget offense is a " 'natural and probable consequence' " of the target offense if, judged objectively, the additional offense was reasonably foreseeable. . . . The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. . . . Rather, liability " 'is measured by whether 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.' " [Citation.] Reasonable foreseeability "is a factual issue to be resolved by the jury." [Citation.]' (People v. Chiu, supra, 59 Cal.4th at pp. 161-162.)" The critical point of fact for the jury's determination is therefore whether the nontarget crime "was a natural and probable, i.e., reasonably foreseeable, consequence of the target crime." (Id. at p. 613.)
According to Reyes, the pattern instruction on the natural and probable consequences doctrine allowed the jury to find guilt despite facts showing a break in the chain of causation (e.g., the independent decision of Gonzales, Fonseca, and Serna to await Wise's return and use violence to extract the safe codes, which contradicted the plan to surveil Wise to ensure he was gone). He contends that a modified or additional instruction on superseding cause was necessary for the jury's understanding of the principles of law and defense theory of the case. (Breverman, supra, 19 Cal.4th at p. 154.) Reyes points to what the Ninth Circuit describes as "[a] basic tenet of criminal law . . . that the government must prove that the defendant's conduct was the legal or proximate cause of the resulting injury." (United States v. Spinney (9th Cir. 1986) 795 F.2d 1410, 1415; accord People v. Schmies (1996) 44 Cal.App.4th 38, 47 [" 'the defendant's act must be the legally responsible cause ("proximate cause") of the injury, death or other harm which constitutes the crime' "].)
We recognize that the issue of proximate causation raises similar factual questions to those that the jury must decide under the natural and probable consequences doctrine. "In general, '[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating.' " (People v. Cervantes (2001) 26 Cal.4th 860, 866 (Cervantes).) "The critical factor in determining the question of proximate cause is the foreseeability of an intervening act." (People v. Schmies, supra, 44 Cal.App.4th at p. 56; see also People v. Roberts (1992) 2 Cal.4th 271, 321-322 ["A result cannot be the natural and probable cause of an act if the act was unforeseeable"].) However, since Reyes's liability beyond the burglary was premised on aider and abettor (or coconspirator) liability, the pertinent question was that of foreseeability under the natural and probable consequences doctrine. We find that without directly referencing the phrase "reasonably foreseeable," the pattern jury instruction adequately translated the concept for the jury.
Courts consider two types of intervening force that may affect the probable cause determination. An "independent" intervening cause, which generally absolves a defendant of criminal liability, " ' "must be 'unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.' " ' " (Cervantes, supra, 26 Cal.4th 860 at p. 871.) In contrast, a "dependent" intervening cause generally does not relieve the defendant of criminal liability where the " ' "intervening cause is a normal and reasonably foreseeable result of [the] defendant's original act . . . ." [Citation.] . . . The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' " (Ibid.)
To begin, the instruction based on CALCRIM No. 402 essentially followed our high court's identification of the elements required for aider and abettor liability under the natural and probable consequences in People v. Prettyman (1996) 14 Cal.4th 248: "To apply the 'natural and probable consequences' doctrine to aiders and abettors is not an easy task. The jury must decide whether the defendant (1) with knowledge of the confederate's unlawful purpose, and (2) the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant's confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated. Instructions describing each step in this process ensure proper application by the jury of the 'natural and probable consequences' doctrine." (Id. at p. 267, second set of italics added.) The language utilized by the trial court properly expressed each step identified in Prettyman.
In addition, the pattern instruction required the jury to make a factual finding as to whether the unintended acts were of the sort that " ' "a reasonable person in the defendant's position would have or should have known" ' " were a " ' "reasonably foreseeable consequence of the act aided and abetted." ' " (Chiu, supra, 59 Cal.4th at p. 162.) The reference in the pattern instruction to what "a reasonable person would know is likely to happen if nothing unusual intervenes" placed within the jury's consideration the notion that something "unusual" intervening would interrupt what an otherwise "reasonable person would know is likely to happen . . . ." This was adequate to present the issue of foreseeability in layperson's terms, even coming close to the definition of superseding cause in the proximate cause context as " ' "unforeseeable . . . an extraordinary and abnormal occurrence . . . ." ' " (Cervantes, supra, 26 Cal.4th at p. 871.) Accordingly, we are not persuaded that in omitting an explicit instruction on proximate causation, the trial court failed to instruct the jury on " ' "those principles closely and openly connected with the facts before the court, and . . . necessary for the jury's understanding of the case." ' " (Breverman, supra, 19 Cal.4th at p. 154; accord Gutierrez, supra, 45 Cal.4th at p. 824.)
The cases that Reyes relies on are largely inapposite because they involve conventional proximate cause dilemmas in direct liability situations and do not compel inclusion of a proximate or superseding cause instruction here. For example, in People v. Hebert (1964) 228 Cal.App.2d 514, the question was "whether [the] defendant's act of striking [the] decedent and knocking him to the floor was a proximate cause of death," given that police roughly handled the intoxicated and unconscious victim, who later fell from a standing position during the booking procedure at the police station and again struck his head on the floor. (Id. at p. 516.) The appellate court reversed the jury verdict of involuntary manslaughter after finding that the trial court had "confused" the issue of the proximate cause of death by instructing the jury using a variety of undefined terms, including " 'efficient intervening cause' " and " 'superseding cause.' " (Id. at p. 520.) No such confusion of terms appears here, nor did Wise's injuries result from a secondary occurrence completely separate and apart from the burglary.
Likewise in People v. Brady (2005) 129 Cal.App.4th 1314, aider and abettor liability was not at issue. The defendant was charged with the deaths of two firefighter pilots who collided in-air while responding to a fire that broke out near the defendant's methamphetamine laboratory. An expert testified that the collision occurred when one of the pilots flew too low and in the wrong direction. (Id. at p. 1322.) The jury found the defendant guilty of recklessly starting a fire that caused the death of the two pilots. (Id. at p. 1323.) On appeal, the defendant challenged the jury instructions on whether his conduct proximately caused the pilots' deaths, given the intervening acts of the low-flying pilot. (Id. at pp. 1318, 1323.) The court determined that the proximate cause instructions as a whole adequately presented the question of "whether the deaths of the two firefighters were reasonably foreseeable consequences of recklessly setting the fire in the woods." (Id. at p. 1329.)
People v. Ainsworth (1988) 45 Cal.3d 984, 1017, disapproved on other grounds by People v. Sanchez (2016) 63 Cal.4th 665, briefly addressed the defendant's proximate cause argument to find there was no issue of superseding cause and therefore offers no support for Reyes's contentions here. The same is true for People v. Armitage (1987) 194 Cal.App.3d 405, 421 (panic-stricken victim's attempt to abandon boat and swim ashore "was not a wholly abnormal reaction to the perceived peril of drowning" and did not constitute a superseding cause that would exonerate the defendant from liability for felony drunk boating) and People v. Harris (1975) 52 Cal.App.3d 419, 426-428 (preliminary hearing evidence was sufficient to show the defendant's conduct in high-speed chase was a proximate cause of officer's collision into decedent's vehicle).
More on point, but equally unavailing, are People v. Jones (1989) 207 Cal.App.3d 1090 (Jones) and People v. Hammond (1986) 181 Cal.App.3d 463 (Hammond). Both cases involved aider and abettor liability under the natural and probable consequences doctrine; yet the trial court in each case failed to instruct the jury on its duty to find whether the crime charged was the natural and probable consequence of the planned offense. In Hammond, the instruction arguably suggested that the jury should assume, rather than find, that the attempted murder was a natural and probable consequence of the robbery. (Id. at p. 469.) In Jones, the instruction stated only that " '[o]ne who intentionally aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing but he is also liable for the natural and reasonable or probable consequence of any act that he knowingly and intentionally aided or encouraged.' " (Jones, supra, at p. 1097.) Despite these shortcomings, the court in each case determined the error was harmless. (Ibid.; Hammond, supra, at p. 469.) Unlike in both Hammond and Jones, the trial court in this case instructed the jury that in order to find Reyes guilty under the natural and probable consequences doctrine of the non-burglary counts, it had to decide that "[u]nder all of the circumstances, a reasonable person in the defendant's position would have known that the commission of one or more of the other crimes was a natural and probable consequence of the commission of the Burglary."
Moreover, the arguments to the jury highlighted the question of foreseeability under the natural and probable consequences doctrine, reinforcing the concept for the jury's consideration. The prosecutor stated, "We can all agree [the defendant's] plan was go in there when Mr. Wise is not there, take his stuff, and leave. . . . [B]ut now what are the natural and probable consequences. What would an ordinary person think could happen? Well, it's a house. It's where Mr. Wise lives. The plan was for him to do this when he left, when he wasn't there. [¶] Is it a possibility that somebody might return to their home? Yes. You know, even though that wasn't the plan, could somebody return? That's not something that's out of the ordinary, folks. And in the course of the homeowner returning, is it a probability? A likelihood? A possibility that you're going to have to confine the homeowner to keep them from running away? . . . [¶] . . . Is it likely that if the homeowner comes home . . . are you going to have to use some sort of force, whether it be as extreme as was used there or just the fear of violence in saying open up that safe . . . . Is that likely? Is it natural or probable that during the course of the victim coming home that you might have to hit him, knock him down? Is that something that can happen? Well, yeah, it is because, frankly, that's why they planned for this burglary to occur when Mr. Wise wasn't home because the likelihood of violence increases when somebody breaks into your house."
Defense counsel, for her part, argued that "this is where the road that you are traveling with your friend gets a little sketchy and this is where instead of taking the I-5 South, your friend starts to head up the I-5 North and you think, oh, I don't know my friend knows how to get to San Diego. This is where it starts, ladies and gentleman. It starts with this extra theory, this third theory of natural and probable consequences doctrine. [¶] With that law, with that doctrine, [the prosecution] is asking you to convict my client of all of the other horrible stuff. And I'll submit to you there's nobody that's going to [w]alk in here and tell you that what happened to Mr. Wise was good, was wonderful, anything other than horrible. . . . [¶] Those types of crimes are not foreseeable when you decide to go across the street and take your neighbor's TV set when he's not home. The fact that he later ends up tortured beaten almost to death, those are not foreseeable I submit to you. The rule of foreseeability [is] when the defendant first acted not throughout."
We conclude that the instructions given, further reinforced by the arguments of counsel, fairly presented the issue of reasonable foreseeability under the natural and probable consequences doctrine for the jury. Any further instruction or modification to explain the concepts of reasonable foreseeability and superseding cause, as a way to point the jury toward the evidence supportive of the defense's theory based on surveillance of Wise to ensure his absence, required a request by Reyes's trial counsel. (Gutierrez, supra, 45 Cal.4th at p. 824 ["A defendant is entitled to a pinpoint instruction, upon request, only when appropriate."].) We need not address Reyes's claims of constitutional and structural error, or error under Watson, because the instructions given adequately conveyed the burden and elements required for the jury to assign aider and abettor liability under the natural and probable consequences doctrine.
The more compelling claim of error with respect to the trial court's instruction based on CALCRIM No. 402 is one that the defendant does not raise—possibly because it likely only increased the prosecution's burden and benefitted Reyes. We refer to the California Supreme Court's disapproval of the latter part of CALCRIM No. 402 in Smith, supra, 60 Cal.4th 603. Smith involved the defendant's conviction for the murders of two fellow gang members "even though he neither personally killed them nor desired their deaths." (Id. at p. 606.) The trial court in Smith instructed the jury based on CALCRIM No. 402, including the following: " 'A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. . . . If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.' " (Id. at p. 612, italics added.)
The court determined that the italicized sentence—with origins in cases involving conspirator liability—failed to correctly state the law of aider and abettor liability. (Smith, supra, 60 Cal.4th at p. 617.) Specifically, the court found that the limitation on conspirator liability for crimes outside of or foreign to the common design does not automatically transfer to aider and abettor liability: "Because the aider and abettor is furthering the commission . . . of an actual crime, it is not necessary to add a limitation on the aider and abettor's liability for crimes other principals commit beyond the requirement that they be a natural and probable, i.e., reasonably foreseeable, consequence of the crime aided and abetted. If the prosecution can prove the nontarget crime was a reasonably foreseeable consequence of the crime the defendant intentionally aided and abetted, it should not additionally have to prove the negative fact that the nontarget crime was not committed for a reason independent of the common plan." (Id. at pp. 616617.) The court found, however, that "because the sentence was unduly favorable to defendant, giving it cannot have harmed him." (Id. at p. 617.)
The trial court in our case used an identical formulation of the italicized sentence, stating, "If . . . one or more of the other crimes was committed for a reason independent of the common plan to commit the Burglary, then the commission of the other crime or crimes was not a natural and probable consequence of [the] Burglary." Under Smith, this was not a correct statement of aider and abettor liability. However, any error was harmless to Reyes insofar as it increased the prosecution's burden to establish that the nontarget crimes were not committed for reasons foreign to the planned burglary.
3. Instruction on Coconspirator Liability Was Supported by Substantial Evidence and Did Not Require Additional Explanation of Limiting Principle Based on a "Fresh and Independent" Idea Outside of or Foreign to the Conspiracy Design
Reyes further challenges his convictions for the nontarget offenses under the parallel theory of conspirator liability. He contends there was insufficient evidence for the trial court to instruct on coconspirator liability. Alternatively, he contends the instruction on coconspirator liability failed to inform the jury of its factfinding duty to determine whether the offenses beyond burglary were the product of a fresh and independent idea that arose outside of the common plan of the conspiracy.
a. Sufficiency of the Evidence
Reyes maintains that the violent felonies committed by Gonzales, Fonseca, and Serna were not within the scope of the plan to commit burglary and arose out of a change in plan to which he was not privy. He argues based on this evidence that the trial court erred in instructing the jury on coconspirator liability for the nontarget offenses.
"A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof." (People v. Cole (2004) 33 Cal.4th 1158, 1206.) Appellate review of the trial court's decision to instruct on a theory is de novo. (Ibid.) In deciding whether there was sufficient evidence to support the coconspirator instruction on the nontarget offenses, "we must determine whether a reasonable trier of fact could have found beyond a reasonable doubt" that Reyes was guilty of those offenses as a coconspirator. (Ibid.) We " 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) The parties agree that insofar as the claimed error affects Reyes's substantial rights, it is within this court's discretion to review, even absent an objection in the trial court. (§ 1259.)
Reyes makes two arguments to support his contention. First, relying on language in People v. Kauffman (1907) 152 Cal. 331 (Kauffman), he argues that the change of plan during the burglary constituted a fresh and independent idea of the perpetrators, which was outside of the common plan to commit burglary while Wise was away. Next, relying on People v. Garewal (1985) 173 Cal.App.3d 285 (Garewal), he argues that a person cannot anticipate, under the natural and probable consequences doctrine, an act which was " 'actually forbidden' " as part of the conspiracy agreement. (Id. at pp. 299-300.)
The California Supreme Court in Smith, supra, 60 Cal.4th at page 614 referred to Kauffman as the "leading early case concerning the liability of a conspirator for crimes committed by other conspirators . . . ." The key principle expressed is " 'where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.' " (Kauffman, supra, 152 Cal. at p. 334, italics added.) As noted in Smith, subsequent cases have reiterated this limit on coconspirator liability. (Smith, supra, 60 Cal.4th at p. 615, quoting People v. Werner (1940) 16 Cal.2d 216, 223 (Werner) [" '[T]he act must not be the fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.' "], overruled on other grounds by People v. Camodeca (1959) 52 Cal.2d 142, 146.)
In Kauffman, the court affirmed the defendant's second-degree murder conviction based on his participation in a plan to rob a cemetery safe. (Kauffman, supra, 152 Cal. at pp. 332, 338.) The defendant carried burglary tools, and the coparticipants each carried a revolver. The presence of an armed guard stymied the group's plan, and they returned to the city in two groups, with the defendant's group of three walking ahead. After some commotion involving the rear group, in which a shot was fired, a police officer caught up to the defendant's group and asked who had the gun. One of the group members ordered the officer to throw up his hands, leading to a fusillade that killed the officer. (Id. at p. 333.) On appeal, the defendant argued that the conspiracy embraced only the proposed burglary, and the abandonment of that plan terminated the conspiracy, such that "anything done thereafter was the individual act of the party doing it." (Id. at p. 335.) The court reiterated that whether "the act committed was the ordinary and probable effect of the common design or whether it was a fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design" was a question of fact for the jury. (Ibid.) It found that the evidence of the group's arming itself and their manner of traveling to and from the site of the intended crime justified the trial court's instruction—and the jury's subsequent finding—that the common design embraced not only the burglary plan, but protection of the party from arrest or interference on their way to and from the cemetery. (Id. at pp. 335-337.)
Reyes seeks to distinguish Kauffman based on the defendant's involvement throughout the criminal episode. He asserts that unlike in Kauffman, where the defendant's presence and participation arguably supported a finding that the defendant had adopted the common plan as it underwent various changes, Reyes had no role in the common plan after providing the group with information about Wise. He argues that the change of plan outside of his presence and without his knowledge represented a " 'fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.' " (Kauffman, supra, 152 Cal. at p. 334.)
Reyes also relies on Garewal. There, the trial court modified the pattern jury instruction defining the legal responsibilities of coconspirators, CALJIC No. 611, to read in relevant part, " 'Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as a part of the original plan, or was even actually forbidden as part of the original agreement and even though he was not present at the time of the commission of such act.' " (Garewal, supra, 173 Cal.App.3d at p. 299.) On appeal, the court found the italicized language "makes the instruction logically inconsistent, for how can one anticipate as a 'probable and natural consequence of the object of the conspiracy' an act which was 'actually forbidden as part of the agreement'? Worse, it extends a relatively mild form of vicarious liability, one which is at least limited by the reasonable contemplation of the defendant, although perhaps not by his intent, to acts which are specifically not contemplated, much less intended." (Id. at pp. 299-300.) After reviewing then-current jurisprudence on aiding and abetting and conspirator liability, the Garewal court concluded that "the clear thrust" was "to contain the reach of vicarious criminal responsibility of conspirators to the natural and reasonable consequences of the conspiracy." (Id. at p. 302.)
We do not view the principles espoused in Kauffman and Garewal as contrary to the trial court's decision to instruct the jury on conspirator liability under the natural and probable consequences doctrine. Kauffman reinforced the well-settled function of the jury in determining whether an offense committed in the course of the conspiracy was an "ordinary and probable effect of the common design" or a "fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design . . . ." (Kauffman, supra, 152 Cal. at p. 335.) Although Garewal deemed erroneous an instruction that appeared to expand the scope of vicarious liability under a conspiracy theory of liability, it did nothing to alter the basic premise that coconspirators are liable for "the natural and reasonable consequences of the conspiracy." (Garewal, supra, 173 Cal.App.3d at p. 302.) The California Supreme Court more recently restated the rule "that a conspirator may be vicariously liable for a crime committed in furtherance of a conspiracy only if that crime was a natural and probable consequence of the conspiracy." (People v. Prieto (2003) 30 Cal.4th 226, 249-250.) Hence, the pertinent question is whether the record, viewed in the light most favorable to the judgment, disclosed substantial evidence from which a reasonable jury could find the violent events that transpired were a natural and probable consequence of the burglary plan, notwithstanding the component of the burglary plan to surveil Wise.
Sergeant Leon's testimony, based on his interview with Reyes, appears to be the only evidence at trial that offered details of the burglary plan. Sergeant Leon explained that "a component of [the plan] was also to surveil or watch Mr. Wise to ensure that he was away from the home when they broke in." Defense counsel reinforced this point on cross-examination in the following colloquy: "Q. In fact, the plan, the plan that he told you about, willingly told you about, that plan included taking the additional step of surveying Mr. Wise just to make sure he never got into the home; is that correct? A: Yes. That was part of the original plan." Defense counsel also extracted testimony reiterating the instances in which Reyes, according to his statements to Leon, told the group to stay off of his property and not return, told Serna to " 'forget about it' " on the day of the break-in and hung up the phone, and later that night refused to help Gonzales when he called Reyes asking for his blow torch.
In his reply brief, Reyes cites Sergeant Leon's testimony from the preliminary hearing, which included a more detailed account of how Gonzales recruited Serna's son to watch Wise while the others were in the residence, and to stay in phone contact with Gonzales and alert him if Wise was returning. Serna's son was prosecuted separately, as a juvenile, for his role in the burglary. The defense did not offer these facts at trial, so we do not consider them in determining the sufficiency of the evidence at trial to support the coconspirator liability instruction.
This evidence could have favored Reyes to the extent it suggested a seemingly failsafe plan to ensure that Wise did not return home during the burglary; the evidence also suggested that Reyes had some ambivalence about continuing with the plan. But other facts that the prosecutor emphasized in closing—including that Serna and Gonzales contacted Reyes on the day of the burglary based on their understanding that he was still involved, and that Reyes and Serna were concerned about getting their cut of the illegal proceeds after the incident—suggested that Reyes remained involved. The fact that Gonzales, Fonseca, and Serna changed the plan while carrying out the criminal design is not dispositive under Kauffman, because the jury could have found that the beating of Wise—despite departing from the original plan—was in furtherance of the plan to complete the burglary. This finding would defeat the limitation that the acts were merely " 'a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.' " (Kauffman, supra, 152 Cal. at p. 334, italics added.)
The closer question is whether substantial evidence existed for the jury to find these acts to be a natural and probable consequence, even though the plan entailed surveillance of Wise. We note several factors could have supported a jury finding that violence in the course of the burglary was, in fact, a natural and probable consequence of an interruption regardless of the plan. First, this element of the plan was not under the direct control of the perpetrators. The jury heard testimony only that the plan was to surveil Wise to make sure he was away, and that Serna called Reyes on the afternoon of the incident to report that they were watching Wise who had left his house and was somewhere in the City of Gilroy. Also, the jury was not informed of the nature of the surveillance and whether it was ongoing. At closing argument, defense counsel may have tried to clarify this. She argued, "There was surveillance included in that plan. And the reason why surveillance is so important is you don't watch someone and follow them to make sure they're not home. You're not planning for that person to come home because you added the extra planning of watching to make sure they are not home, so why not pick Super Bowl Sunday, a day when a fellow leaves the house, whether he's at a sports bar, ex-wife's house, . . . he's going to be . . . at that game until that game is over."
At best, the evidence, and any persuasive value added by counsel's argument, indicated that Serna told Reyes that Wise had left the house, and that surveillance, or perhaps the Super Bowl game, provided assurance that he kept away. The prosecutor in rebuttal challenged the reliability of such assurances. He argued, "It's not out of the ordinary for the homeowner to return home, no matter what's going on. . . . You don't get to set the parameters for what you agree upon. [¶] . . . Things happen that aren't part of the plan. [¶] . . . [¶] But the only thing you need to decide is was everything done that day by those individuals in furtherance of the original plan. Was everything done that day in keeping the goal of getting Gary Wise's stuff?"
Viewing the record in the light most favorable to the judgment, we find there was substantial evidence to support a jury finding that regardless of a surveillance plan, violence against the homeowner was a natural and probable consequence of the burglary and occurred in furtherance of the common plan. An instruction on coconspirator liability under the natural and probable consequences doctrine did not impose a strict liability construction of conspirator liability, because whether the fact of surveillance was sufficient to displace what otherwise would be considered a natural and probable consequence was a proper question for the jury. (Cf. Garewal, supra, 173 Cal.App.3d at p. 300 [citing commentary that the conspiracy-complicity rule is not a strict liability doctrine, since it is a defense to show " 'the "substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement" ' "].) We conclude that the trial court did not err in instructing the jury on coconspirator liability in relation to the nontarget offenses.
b. Instruction on Coconspirator Liability
Having concluded that substantial evidence supported a jury instruction on conspirator liability, we turn to Reyes's contention that the instruction was prejudicially flawed. Reyes asserts two independent grounds of error.
First, he argues that the instruction incorporated the defects of the aiding and abetting instruction on natural and probable consequences in that it failed to explain superseding causation. For the same reasons stated in our earlier analysis of the issue, we find that an additional or modified instruction on superseding cause was not required. (See ante, section II.C.2.)
Reyes next argues that CALCRIM No. 417 failed to properly instruct the jury that in order to convict him of the nontarget offenses as a coconspirator, it had to determine the offenses were not a fresh and independent product of the minds of those committing them, outside of or foreign to the common plan of the conspiracy. Reyes relies on the limit on conspirator liability articulated in Kauffman, whereby " 'the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.' " (Kauffman, supra, 152 Cal. at p. 334; accord Werner, supra, 16 Cal.2d at p. 223; People v. Harper (1945) 25 Cal.2d 862, 866.) He argues that in failing to state the limit on coconspirator liability, the instruction unduly favored the prosecution in violation of Reyes's constitutional right to due process and trial by jury.
In order to determine whether the trial court had a sua sponte duty to instruct the jury on whether the offenses resulted from a fresh and independent source, outside of or foreign to the common design, we must consider whether the instruction, as given, adequately presented the principles and facts necessary for the jury's understanding of the case. (Breverman, supra, 19 Cal.4th at p. 154.) If the desired instruction would merely " 'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi,' " the court did not err by failing to give the instruction sua sponte. (Gutierrez, supra, 45 Cal.4th at p. 824.)
We repeat in relevant part the trial court's instruction based on CALCRIM No. 417, which read: "A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. . . . [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan." (Italics added.)
The remainder of the CALCRIM No. 417 instruction stating the elements required to find Reyes guilty under a conspiracy theory of liability is set forth above in section II.A. --------
Viewing the instruction in its entirety, we find the references to an act "to further the conspiracy," and an act that is "a natural and probable consequence of the common plan or design of the conspiracy" adequate to convey the limitation on conspirator liability that our high court articulated in Kauffman. As discussed above in footnote 14, the court in Smith examined this limitation while differentiating conspirator from aider and abettor liability. The court observed that "[c]onspiracy is an inchoate crime" and "thus criminalizes preparatory conduct at an earlier stage than an attempt to commit a crime. . . . [¶] Because a conspirator can be liable for a crime committed by any other conspirator, and the defendant need not do (or even encourage) anything criminal except agree to commit a crime, it is reasonable to make a conspirator not liable for another conspirator's crime that is ' "a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design." ' " (Smith, supra, 60 Cal.4th at p. 616.) But Smith was an aiding and abetting case and offers no authority for the level of detail required in order for an instruction on conspirator liability to explain the limiting principle. At most, we draw limited guidance from the court's statement, in the aiding and abetting context, that "whether an unintended crime was the independent product of the perpetrator's mind outside of, or foreign to, the common design may, if shown by the evidence, become relevant to the question whether that crime was a natural and probable consequence of the target crime." (Id. at p. 617.) The court reiterated that under those circumstances, the question would inform the jury's factual inquiry but would not be "a separate legal requirement." (Ibid.)
Nor have we found, in cases involving direct questions of conspirator liability, an instruction that expressly reflected the "fresh and independent" limitation from Kauffman, or that was deemed deficient without it. One such case is Werner, supra, 16 Cal.2d 216, which generally reaffirms the limiting principle but does not address directions to the jury. There, the court reversed a conviction of attempted grand theft because the defendant's coconspirators had entered into a "secret arrangement" (id. at p. 220) to alter the plan and exclude him from the operation. (Id. at pp. 217, 220-221.) The court explained in relevant part " 'the reasonable limitation that the particular act of one of a party, for which his associates and confederates are to be held liable, must be shown to have been done for the furtherance or in prosecution of the common object and design for which they combined together. If one of a number of conspirators goes outside the common plan and commits a fresh and independent act, wholly outside and foreign to the common design, the others are not to be held equally guilty of that act.' " (Id. at p. 223.)
People v. Luparello (1986) 187 Cal.App.3d 410 (Luparello) offers additional insight but little support for Reyes's contention. The defendant in Luparello challenged his murder conviction on grounds including the trial court's conspiracy instruction and application of the natural and probable consequences doctrine. He argued, in part based on jurisprudence involving the felony-murder rule, that the jury instruction on conspirator liability improperly " 'bootstrapp[ed]' " liability. (Id. at p. 435.) He further argued that the murder was the unplanned and unintended act of a coconspirator and therefore not chargeable to him (id. at p. 438), and the victim's killing was "inconsistent with the conspiratorial goal of obtaining information" from that individual. (Id. at p. 443.)
The instruction in Luparello used similar language to that in our case. It provided, " 'Every conspirator is legally responsible for the act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as part of the original plan.' " (Luparello, supra, 187 Cal.App.3d at p. 436.) The court examined the longstanding policy behind the theory of liability and ultimately rejected each of the defendant's arguments. It explained that "[i]n combining to plan a crime, each conspirator risks liability for conspiracy as well as the substantive offense; in 'planning poorly,' each risks additional liability for the unanticipated, yet reasonably foreseeable consequences of the conspiratorial acts, liability which is avoidable by disavowing or abandoning the conspiracy." (Id. at p. 438.) The court reiterated that what constitutes a natural and probable consequence is a question of fact for the jury. (Id. at p. 443.) Because the defendant paid his coconspirators to target the victim, knew they carried weapons, and directed them to get the information " 'at any cost,' " the court found the murder was "unquestionably" the natural and probable consequence of the plan. (Ibid.) Regarding the inconsistency of the killing with the goal of extracting information, the court concluded the murder was "a foreseeable, though as to [the defendant] a possibly unintended, consequence of the conspiracy" and not merely a "fresh and independent act of a coconspirator . . . ." (Id. at p. 444.)
The facts in this case do not suggest an equivalent degree of direct culpability as appeared in Luparello, given that defendant's primary role in arranging the assault and perhaps emboldening the use of force. (Luparello, supra, 187 Cal.App.3d at pp. 443-444.) But like in Luparello, the fact that the offenses committed by the coconspirators here appeared inconsistent with or contrary to the common plan could be determined by the jury from the instruction on whether the acts were a natural and probable consequence of the object of the conspiracy. We find it significant that the CALCRIM No. 417 instruction does not merely state that the act must further the conspiracy and be a natural and probable consequence, but that "is a natural and probable consequence of the common plan or design of the conspiracy." Thus, to the extent the defense was predicated on acts that evolved from a fresh or new plan by members of the conspiracy, the jury had sufficient direction to find those acts were not a natural and probable consequence of the original plan to which Reyes had agreed. Any further instruction on the limiting principle of a " 'a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design' " (Kauffman, supra, 152 Cal. at p. 334) may have been appropriate to "pinpoint" the crux of Reyes's defense that he was not present when the plan changed, but it was not the trial court's duty to devise such an instruction sua sponte. (See Gutierrez, supra, 45 Cal.4th at p. 824.)
We conclude that the trial court did not err in instructing the jury on coconspirator liability according to CALCRIM No. 417, absent a pinpoint request by defense counsel.
The judgment is affirmed.
Premo, Acting P.J.
WE CONCUR: /s/_________
Elia, J. /s/_________