Opinion
G053359
04-24-2017
In re JONATHAN AGUILAR SANDOVAL on Habeas Corpus.
Corona & Peabody and Jennifer Peabody for Petitioner. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09CF0780) OPINION Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, W. Michael Hayes, Judge. Petition denied. Corona & Peabody and Jennifer Peabody for Petitioner. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Jonathan Aguilar Sandoval challenges the trial court's denial of his habeas petition based on the Supreme Court's holding in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) that the natural and probable consequences doctrine does not extend to first degree premeditated murder. As we explain, the error identified in Chiu did not occur here because the trial court's instructions only allowed the jury to find Sandoval guilty of first degree premeditated murder based on his premeditation and deliberation rather than an accomplice's. We therefore deny the writ petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
Sandoval and his gang cohort murdered Gerardo Cisneros on June 5, 2008, near the intersection of Durant and 15th Streets in Santa Ana. In October 2010, a jury convicted Moises Arnaldo Flores of second degree murder and active participation in a criminal street gang, and found various penalty enhancements applied, and on Flores's direct appeal, a panel of this court rejected his challenges to the admissibility of statements he made. (People v. Flores (April 11, 2012, G044546) [nonpub. opn.].)
In a separate trial in May 2012, a jury convicted Sandoval of active gang participation (Pen. Code, § 186.22, subd. (a); all further statutory references are to this code) and first degree murder (§ 186.22, subd. (a)) with a special circumstance finding that Sandoval intentionally killed Cisneros for a criminal street gang purpose (§ 190.2, subd. (a)(22).) The jury also found two enhancement allegations true on the murder count: Sandoval vicariously discharged a firearm in a shooting by a gang member (§ 12022.53, subds. (d) & (e)(1)), and he committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)).
In Sandoval's direct appeal, a panel of this court modified the judgment (§ 1260) by striking a 10-year term on the gang enhancement given imposition of the 25-years-to-life gang firearm enhancement, but in all other respects upheld the judgment. Specifically, we rejected Sandoval's challenges to the sufficiency of the evidence to support his murder conviction, the nature of his gang's primary activities, and whether he knew of his gang's criminal conduct. We similarly turned aside his section 654 challenge to the concurrent term imposed on the gang participation count and his claim that though he would have a meaningful opportunity to obtain parole since he was 17 years old when he committed the offense, his sentence of 50 years to life constituted cruel or unusual punishment for murder. (People v. Sandoval (April 30, 2014, G047431) [nonpub. opn.] (Sandoval).) We draw the operative facts from that opinion, as relevant:
"On a weekday afternoon in June 2008, Dayanira Garcia stood on the balcony of her apartment in Santa Ana towards the south end of the 1500 block of Durant Street. She noticed a two-door vehicle with faded or worn off paint driving south on Durant Street, approaching 15th Street. Garcia heard the occupants of the vehicle exchange 'rude' insults with a group of four or five males sitting outside an apartment building.
"The group included the eventual victim, Cisneros, a member of the Krazy Proud Criminals (KPC) criminal street gang. A Santa Ana Police Department detective and gang expert, Julian Rodriguez, explained at trial that Sandoval's gang, Barrio Small Town (BST), allied itself with the Logan Street criminal street gang, and BST and Logan Street were in the midst of gang warfare with KPC. KPC claimed Durant Street as its territory, just west of territory the Logan Street gang claimed.
"Meanwhile, on the day of the shooting, Maria Mendoza was working not far from Garcia's balcony, in her food truck on Durant Street, just north of 15th Street. Like Garcia, Mendoza heard some shouting by a group of young men when a vehicle passed. Mendoza heard one or more persons shout 'KPC.' From her balcony, Garcia noticed the vehicle come to a halt, and a rear passenger exited but quickly reentered when Cisneros's group gave chase on foot. The vehicle drove away, turning onto 15th Street. Cisneros's group dispersed, except he and a remaining companion sat down on some stairs along Durant Street.
"Garcia remained on her balcony, talking on her phone, and about 10 minutes later she saw a hooded young man with a long handgun advance up Durant Street from the intersection at 15th Street, where the vehicle in the confrontation had turned and departed. The youth was the same person who earlier had exited and reentered the vehicle. Mendoza also noticed the hooded figure walk by the service window of her food truck, holding a gun and headed northward up Durant Street. Garcia saw the man stop where Cisneros and his friend were seated, and he fired several shots at them. Mendoza also heard the shots, and she threw herself down inside her truck on top of her five-year-old grandson. Garcia saw Cisneros's companion escape and Cisneros, who had been hit by the gunfire, stumbled up and across Durant Street. The gunman followed him briefly, but then retreated, ran back down the street, and turned and fled on 15th Street. Garcia left her balcony, entered her apartment, and called the police.
"Brenda Gonzalez heard the gunshots from her position inside the grated security door at the back of a laundromat at the north end of the block, at the intersection of Durant Street and 16th Street. Gonzalez had just returned to the laundromat from Mendoza's food truck, and on her way back she noticed a gray car with several occupants stopped on 16th Street near its intersection with Durant Street. When she heard the gunshots and looked back out through the security door, she noticed the car had turned onto Durant Street, facing north towards 17th Street. The car was stopped next to a blue SUV and the occupants of the two vehicles were talking.
"Gonzalez noticed Sandoval, whom she knew as 'Sparky,' a fellow student at Santa Ana High School, exit from the back seat of the gray car, carrying a gun. Sandoval ran south toward Cisneros as Cisneros was crossing Durant Street. Sandoval approached him, fired five shots at him, and ran back to the gray car. Gonzalez did not see Sandoval at school in the days immediately after the shooting, but when he returned, she overheard him telling a friend, ' "We killed a Chango."' Detective Rodriguez explained at trial that 'Chango' was a disrespectful slang term in Sandoval's gang for KPC gang members.
"Cisneros died at the hospital from his gunshot wounds. A memorial erected where he had fallen on Durant Street was later defaced by Logan Street gang graffiti.
"Rodriguez and another detective interviewed Sandoval about the shooting. He initially claimed he had been picked up from school on the day of the shooting and learned about it from family members. Then he conceded he had been on foot in the area, but heard no gunshots. Then he admitted he had been walking on Durant Street with two female cousins, they had passed 16th Street headed north when they heard gunshots, and he looked back and saw a crowd gathering. Sandoval's cousin, however, denied she had been with him on the day of the shooting, which she learned about from her parents after it happened." (Sandoval, supra, at pp. 2-5.)
In September 2015, Sandoval filed a habeas petition in the trial court based on Chiu, which the trial court denied in a written opinion because of the jury's special circumstances finding. The court explained that "a reasonable jury believing [Sandoval] acted with the intent to kill would not have found him guilty of murder under a natural and probable consequences theory of vicarious liability because the instructions on such a theory were given to afford the jury a path to a murder conviction without a finding of intent to kill." The court acknowledged that "an intent to kill is not the same as [the] premeditation and deliberation" necessary for first degree murder, but concluded "[t]he jury's affirmative finding with respect to the special circumstance allegation effectively removes the possibility that the jury improperly relied upon the natural and probable consequences doctrine of vicarious liability to find petitioner guilty of first degree murder." Sandoval now has filed a new habeas petition in this court.
II
DISCUSSION
Sandoval contends he is entitled to habeas relief under Chiu because of trial court error in allegedly instructing the jury on the natural and probable consequences doctrine as a basis for first degree murder liability. He similarly asserts he is entitled to relief under instructions erroneously making the natural and probable consequences doctrine a basis for first degree murder under uncharged conspiracy instructions, as the court found in People v. Rivera (2015) 234 Cal.App.4th 1350 (Rivera).
The trial court instructed the jury here with CALCRIM No. 417, which provides in pertinent part: "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." (Italics added.)
A panel of this court recently agreed, and so do we, with Rivera concerning the Chiu error inherent in conspiracy instructions based on the natural and probable consequences doctrine, when those instructions result in a first degree murder conviction. (In re Lopez (2016) 246 Cal.App.4th 350, 357 (Lopez) ["the reasoning of Chiu applie[s] equally to uncharged conspiracy liability"].) Lopez explained a defendant is entitled to habeas relief under Chiu and Rivera when the jury may have concluded under the natural and probable consequences doctrine that the defendant is liable for first degree murder based on the perpetrator's premeditation and deliberation, as opposed to his own. (Lopez, at p. 361.)
The Attorney General concedes Chiu error here, but argues it was harmless. We find the concession unwarranted. As we explain, the trial court did not instruct the jury erroneously as in Chiu or Rivera.
Although both are defined as "principals" in the commission of an offense, the law distinguishes between perpetrators and one who aids and abets the crime. (§ 31.) "If the defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor." (People v. Perez (2005) 35 Cal.4th 1219, 1225.) "There are two distinct forms of culpability for aiders and abettors. '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."'" (Chiu, supra, 59 Cal.4th at p. 158.)
More specifically, a person directly aids and abets the commission of a crime when he or she "'knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Consequently, when the offense charged is murder, a direct aider and abettor "must know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).) "Because the mental state component — consisting of intent and knowledge — extends to the entire crime," a direct aider and abettor is guilty of first degree murder no less than the perpetrator when both acted with premeditation and deliberation. (Chiu, supra, 59 Cal.4th at p. 167; McCoy, at p. 1118 ["an aider and abettor's mental state must be at least that required of the direct perpetrator"].) The jury here was instructed on direct aiding and abetting liability (CALCRIM No. 401).
The jury was also instructed on aiding and abetting liability under the natural and probable consequences doctrine (CALCRIM No. 403). Under that doctrine, an aider and abettor is responsible not only for intended "target" offenses, but also for "nontarget" offenses the perpetrator commits, provided those offenses were reasonably foreseeable at the time the aider and abettor rendered aid or support. (People v. Laster (1997) 52 Cal.App.4th 1450, 1463.) The doctrine also applies to coconspirators, on the policy rationale that "'conspirators and aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.' [Citation.]" (Rivera, supra, 234 Cal.App.4th at p. 1356.) As noted (fn. 1, supra), the jury was instructed on conspirator liability under the natural and probable consequences doctrine for a coconspirator's acts (CALCRIM No. 417).
In Chiu, the Supreme Court explained that while a defendant may be found guilty of second degree murder based on the doctrine of natural and probable consequences, that theory of liability does not apply to first degree premeditated murder because the mental state required (willfulness, premeditation, and deliberation) "is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. [Citations.]" (Chiu, supra, 59 Cal.4th at p. 166.) Therefore, "where the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing [an aider and abettor] to be convicted of that greater offense under the natural and probable consequences doctrine." (Ibid.)
Consequently, the Supreme Court in Chiu found error in the trial court's instructions allowing the jury to find the defendant guilty of first degree premeditated murder under a natural and probable consequences theory based on the perpetrator's premeditation and deliberation. (Chiu, supra, 59 Cal.4th at pp. 160-161.) The same was true under the conspiracy instructions given in Rivera. (Rivera, supra, 234 Cal.App.4th at p. 1357 ["the trial court here erred in instructing the jury it could reach a verdict of first degree murder for Huante if it found that the target crime of the uncharged conspiracy was discharging a firearm at an occupied vehicle and that first degree murder was a natural and probable consequence of that target crime"].)
Because the jury here found pursuant to the gang special circumstance allegation (§ 190.2, subd. (a)(22)) that Sandoval harbored the specific intent to kill the victim, it is highly unlikely the jury proceeded under the natural and probable consequences doctrine. A "natural and probable consequence" is simply one that "a reasonable person would know is likely to happen if nothing unusual intervenes." (CALCRIM Nos. 403 & 417, italics added.) "The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense" (Chiu, supra, 59 Cal.4th at pp. 161-162), but rather on whether that outcome was objectively likely or foreseeable. (Ibid.) In contrast, a jury that has determined the defendant actually intended to kill the victim has moved beyond abstract considerations of the likelihood of murder to an affirmative finding that the defendant intended that exact result. There is little reason to suppose the jury relied on the natural and probable consequences doctrine in such circumstances.
The gang special circumstance allegation requires the jury to find the defendant "intentionally killed the victim while . . . an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) --------
In People v. Brown (2016) 247 Cal.App.4th 211 (Brown), a panel of this court reversed the defendant's first degree murder conviction despite a true finding on the gang murder special circumstance, but did so based on the jury's request late in deliberations for further instruction on the natural and probable consequences doctrine. The jury's request came just before its unsigned note stating it could not reach a verdict, which the jury withdrew after lunch to continue deliberating. (Id. at p. 226.) As Brown observed, "The fact that the jury requested further instruction on natural and probable consequences late in its deliberations leads to a reasonable inference there were not 12 votes for guilty on the charge of first degree murder based on theories defendant was the shooter or shared the shooter's intent and aided and abetted the shooter. If there had been agreement, there would have been no reason to request further instruction on a third, unnecessary theory of murder. The fact that the jury reached a verdict shortly after it received further instruction on the issue of natural and probable consequences tends to indicate one or more jurors voted guilty based on the natural and probable consequences theory." (Brown, supra, 247 Cal.App.4th at p. 226.)
But here, there is no such risk because the trial court's instructions only allowed the jury to find Sandoval guilty of first degree premeditated murder based on his premeditation and deliberation. Both in Chiu and here, the trial courts properly instructed the jury on direct aider and abettor liability (aiding and abetting the perpetrator in the murder) and aider and abettor liability based on the natural and probable consequences doctrine (aiding and abetting the target offenses, with murder as a natural and probable consequence). In Chiu, the alleged target offenses were assault or disturbing the peace (Chiu, supra, 59 Cal.4th at p. 160), and here, assault with a deadly weapon.
The trial court here instructed the jury on the natural and probable consequences doctrine using CALCRIM No. 403, as follows in relevant part: "If you decide that the defendant aided and abetted that crime [i.e., assault with a deadly weapon] and that murder was a natural and probable consequence of that crime, the defendant is guilty of murder." (Italics added.) But the instruction did not specify the degree of murder. Instead, the court separately instructed the jury on the elements of murder using CALCRIM No. 520, and the last paragraph of that instruction directed the jury: "If you decide that the defendant committed murder, you must then decide whether it is murder of the first or second degree." (Italics added.)
In Chiu, the trial court erred by improperly instructing the jury on first degree premeditated murder, when that instruction was read in the context of aider and abettor liability under the natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at pp. 160-161.) There, the court instructed the jury "that to find defendant guilty of first degree murder, the People had to prove that the perpetrator acted willfully, deliberately, and with premeditation, and that all other murders were of the second degree." (Id. at p. 161, italics added.) That is, in Chiu the jury was permitted to find the defendant guilty of first degree premeditated murder either as a direct aider and abettor, or under the natural and probable consequences doctrine, so long as the perpetrator (the shooter) acted with premeditation and deliberation.
Conversely, the trial court's instructions in this case informed the jury the defendant (Sandoval) "is guilty" of first degree murder only if the evidence shows beyond a reasonable doubt that he deliberated and premeditated the murder. The trial court correctly instructed the jury regarding first degree premeditated murder (CALCRIM No. 521), as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." (Italics added.) Thus, the jury was instructed that if it found Sandoval guilty of murdering Cisneros as an aider and abettor, it could only find him guilty of murder in the first degree if it found he intended to kill with premeditation and deliberation. We presume that the jury understood and faithfully followed the court's instructions. (People v. Homick (2012) 55 Cal.4th 816, 867.)
The jury's vicarious arming finding on the gang firearm enhancement shows it concluded Sandoval was not the shooter, but the jury nevertheless convicted him of first degree murder. Notably, Flores's jury convicted him only of second degree murder, and it would be somewhat anomalous, though not unprecedented, if Flores were the shooter and yet the verdicts in each case reflect a greater degree of guilt for Sandoval as an aider and abettor. As the Supreme Court has explained, "[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person's guilt is determined by the combined acts of all the participants as well as that person's own mens rea. If that person's mens rea is more culpable than another's, that person's guilt may be greater even if the other might be deemed the actual perpetrator." (McCoy, supra, 25 Cal.4th at p. 1122, italics added.) In any event, there was eyewitness testimony in Sandoval's case that Sandoval's friend and fellow gang member, Juventino Leal, was the actual shooter. The trial court instructed the jury that "[t]here may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial," and "[y]our duty is to decide whether the defendant on trial here committed the crime[s] charged." (CALCRIM No. 373.)
Unlike the jury instructions in Chiu, nothing in the trial court's instructions here allowed the jury to find first degree murder based on the premeditation and deliberation of anyone but Sandoval. Therefore, if the jury relied on an aiding and abetting theory—and it appears it did based on the penalty enhancement it found true for vicarious use of firearm in a gang shooting—it could only be as a direct aider and abettor. That is, the jury must have concluded Sandoval directly aided and abetted in Cisneros's murder and did so with premeditation and deliberation. Thus, the jury's finding Sandoval committed first degree premeditated murder necessarily means it did not rely on the natural and probable consequences theory. Simply put, under CALCRIM No. 521 as given, the jury had to find Sandoval intended to kill, and did so with premeditation and deliberation, not simply that he intended to commit the target crime of assault with a deadly weapon.
In contrast, as Chiu explained, the trial court's instructions in that case erroneously allowed the jury to convict the defendant of first degree murder based on the natural and probable consequences doctrine if they found the perpetrator committed premeditated and deliberate murder. Here, the trial court avoided this pitfall by correctly informing the jury that to find Sandoval guilty of first degree premeditated murder they had to find he premeditated and deliberated the murder under CALCRIM No. 521.
Resisting this conclusion, Sandoval in supplemental briefing argues that because the jury was not told specifically in the natural and probable consequences instruction (CALCRIM No. 403) or in the conspiracy instruction (CALCRIM No. 417) to refer to CALCRIM Nos. 520 and 521 to determine the degree of murder, Chiu error still occurred. He reasons that without a specific guide to determining the degree of murder in the natural and probable consequences instruction and the conspiracy instruction, there is a risk he is being held strictly liable for first degree murder under those instructions. We agree it would have been easier to ascertain the jury's intent if it expressly had been told in the natural and probable consequences and conspiracy instructions that the defendant could be convicted only of second degree murder under those theories, not first degree murder.
Nevertheless, the flaw in Sandoval's argument is that he assumes the default degree of murder is somehow first degree. Based on this assumption, he characterizes any jury finding of murder under the natural and probable consequences doctrine, including under the conspiracy instructions, as a strict liability finding of first degree murder. He therefore asserts the instructions remained legally invalid under Chiu.
But there was nothing in the instructions to suggest the default degree of murder is first degree. To the contrary, as noted, the jury was instructed in CALCRIM Nos. 520 and 521 that if it determined Sandoval committed murder, then it was to assess whether it was of the first or second degree, and it could only be first degree murder if he premeditated and deliberated it. While these instructions for determining degree were not repeated in CALCRIM Nos. 403 and 417, that would have been redundant. The jury was instructed to read and apply the instructions as a whole. (CALCRIM No. 200 ["Pay careful attention to all of these instructions and consider them together"].) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We must assume they did so here.
Sandoval also notes that the prosecutor in one instance misstated the law by arguing that if "the person here who is not the defendant" was the shooter, and "[i]f he has premeditation and deliberation, well, that's sufficient." But stray comments that are not repeated or emphasized are not enough. Instead, "we presume the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." (People v. Sanchez (1995) 12 Cal.4th 1, 70; People v. Cruz (2001) 93 Cal.App.4th 69, 73 [court must presume the jury "'meticulously followed the instructions given'"].)
Because the trial court committed no instructional error, we need not address either party's harmless error analysis. Sandoval is not entitled to a writ of habeas corpus because there was no instructional error under Chiu.
III
DISPOSITION
The petition for a writ of habeas corpus is denied.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.