Opinion
F071781
10-02-2018
THE PEOPLE, Plaintiff and Respondent, v. YOLANDA IRENE AVILES et al., Defendants and Appellants.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Yolanda Irene Aviles. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Cosmen Alvarez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, Stephanie A. Mitchell, and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14900034)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Yolanda Irene Aviles. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Cosmen Alvarez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, Stephanie A. Mitchell, and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Yolanda Irene Aviles and Cosmen Alvarez (Aviles and Alvarez, respectively; collectively, defendants) stand convicted, following a jury trial, of first degree murder (Pen. Code, § 187, subd. (a); count 1), kidnapping (§ 207, subd. (a); count 2), and assault with a firearm (§ 245, subd. (a)(2); count 3). The jury further found, with respect to Alvarez, that as to count 1, he personally and intentionally discharged a firearm, proximately causing death (§ 12022.53, subd. (d)); as to count 2, he personally used a firearm (§ 12022.53, subd. (b)); and as to count 3, he personally used a firearm (§ 12022.5, subd. (a)). With respect to Aviles, the jury found, as to counts 1 and 2, a principal was armed with a firearm in commission of the offense (§ 12022, subd. (a)(1)). Aviles was sentenced to prison for 11 years plus 25 years to life, while Alvarez was sentenced to prison for 22 years four months plus 50 years to life. Both were ordered to pay victim restitution as well as various fees, fines, and assessments.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, we hold: (1) Sufficient evidence supports Aviles's convictions on counts 1 and 3; (2) The trial court did not err by admitting evidence Alvarez had a wife and children, and defendants were not prejudiced in any event; (3) The jury instructions adequately conveyed the timing requirement for aiding and abetting premeditated murder, and counsel for Aviles was not ineffective for failing to request modification of the standard instruction; (4) CALCRIM No. 3471 was properly given, and any error in the wording of the instruction was harmless; (5) CALCRIM No. 640 did not direct the jury to find Aviles guilty of first degree murder; (6) Aviles was not prejudiced by errors in the instruction concerning second degree murder as a natural and probable consequence of aiding and abetting kidnapping; (7) Assuming the trial court erred by failing to instruct on voluntary manslaughter based on heat of passion, neither defendant was prejudiced; (8) Assuming the trial court erred by failing to instruct, as to Aviles, on aiding and abetting involuntary manslaughter, the error was harmless; (9) Defendants were not prejudiced by their attorneys' assertedly incompetent failure to request an instruction on accident; (10) Defendants were not entitled to an instruction regarding mistake of fact as to consent, even upon request, with respect to the kidnapping count; (11) Aviles is not entitled to reversal based on the trial court's response to a question from the deliberating jury, or based on trial counsel's asserted ineffectiveness in connection therewith; (12) The prosecutor did not commit misconduct by misstating the presumption of innocence; (13) Neither defendant is entitled to a remand with respect to statutory amendments made by Senate Bill No. 620; and (14) Minor clerical errors in the abstracts of judgment must be corrected. We order those corrections and affirm the judgments in their entirety.
FACTS
I
PROSECUTION EVIDENCE
In December 2013, A.R., Aviles's daughter, was pregnant with the baby of her fiancée, Jose Villa. A.R. had known Alvarez, whose nickname was "Toucan," for two or three years. Alvarez had known J.E., who was good friends with Villa, about the same length of time. Defendants had known each other for a few months, and were living together at Aviles's house on South Kirk Street, in Fresno. Also living at the Kirk Street residence was J.A., A.R.'s younger brother.
Unspecified dates in the statement of facts are to the year 2013. In addition, all law enforcement personnel are members of the Fresno Police Department.
At some point before defendants began dating, Villa and Alvarez sold marijuana together. In the course of their dealings, Villa came to owe Alvarez approximately $2,000 for a pound of marijuana. The two men had "some kind of issues" about the debt, which had been owed for over a year as of December. Alvarez pushed for payment to the point that Villa threatened to kill him if Alvarez did not leave J.E.'s family alone. Aviles told A.R. that Villa was in a lot of trouble and A.R. should get away from him.
Alvarez's father was related to J.E.'s father. J.E. was aware of the dispute between Alvarez and Villa. He believed Villa owed Alvarez about $8,000. Alvarez did not merely ask J.E.'s father to help resolve the issue; J.E.'s father and sister were too scared even to live in their house because of what was being done.
On December 2, J.E. took Villa's truck to the Kirk Street house. Alvarez did not want to let J.E. leave, so he refused to move his car from behind the truck. Alvarez wanted to take the truck as payment for the debt Villa owed him. Villa, who was at a motel with A.R., went to the house. He and Alvarez got into an argument, and Villa grabbed a shotgun out of the truck. He pointed it at Alvarez and told him to move his car. Alvarez did not comply, and the two continued to argue. Aviles stepped in front of Villa, because he was going to shoot Alvarez. Eventually, Alvarez moved the car and left with Aviles. The police were called that night. When Villa found out, he threatened Alvarez for calling the police.
Villa and A.R. immediately returned to Yuba City, where they were living with Villa's sister. Villa and A.R. were hiding because defendants were looking for them. On December 18, Aviles arrived, unannounced, at the sister's house with her son J.A. and a man the sister had never before seen. The man, whom J.A. said was Aviles's boyfriend, stayed in the car, while J.A. came to the door and handed the sister a letter. J.A. said his mother was sending it to Villa. The sister, who was scared because it seemed strange that Aviles would bring her a letter when they did not know each other, telephoned Villa. Villa said he would read the letter when he returned, but he never came back. The note was written by Aviles. It read: "Hey, [A.R.] call me ASAP. It's important that you get this, and please ask Santos [Villa] . . . to get it together or they'll be back, okay? Sorry about it being your man, but it's what's up, okay? Please take it as a good gesture. Irene Aviles."
On the night of December 21, A.R. and J.E. both were present when Villa made a call to a friend of Alvarez, in an attempt to get the friend to bring Alvarez somewhere so Villa could kill him. A.R. was not sure what led up to this, but Villa told her that if he did not find Alvarez first and do away with him, Villa was going to die.
As of December 22, Villa and A.R. had been staying at the Vagabond Inn on South East Avenue, near Jensen Avenue and Freeway 99, in Fresno, for about two days. That morning, they left the hotel in Villa's green Chevrolet Tahoe, to visit a friend in Parlier. They did not go by the house on South Kirk Street. A.R. had not told Aviles that she was going to be in town or that they were at the Vagabond Inn; however, Aviles was aware they had stayed there on prior occasions.
At 11:26 that morning, police received a report of shots being fired at Aviles's residence. The report came from a neighbor. Officers Soghoian and Miramontez arrived at 11:53 a.m. Upon arrival, Soghoian observed J.A. in the driveway. At the corner of the residence, Soghoian observed multiple .40-caliber shell casings. J.A. said defendants had just been at the house and were there when the shots were fired.
Meanwhile, Villa and A.R. returned to the hotel. They planned to change rooms so they could have accommodations for their dog. They discovered their room key would not work, so Villa drove to the hotel office and parked. He went inside to see about the key, while A.R. remained in the vehicle.
J.E. had gone to the hotel to see Villa, A.R., and a mutual friend. He was standing in back of the hotel, smoking, when a gray Infiniti approached. Aviles was driving. Alvarez was in the car with her. The car pulled up next to J.E., and defendants both called him over. Aviles told him to get in the car, and that nothing was going to happen to him, as he was "neutral." Alvarez got out of the car. As he did so, he pointed a gun at J.E. and told him to get in. Alvarez said he would break J.E.'s legs. Because he was pointing the gun at J.E., J.E. interpreted this to mean he was going to shoot J.E.'s legs. Then he said he was going to kill J.E. if J.E. did not go. While Alvarez was doing this, Aviles was just waiting in the car.
J.E. was hesitant to get in the car, as he was afraid for his life. Eventually, he got in the front passenger seat. Alvarez got in the backseat behind him and held the gun to his head. Alvarez said he was going to kill him in front of J.E.'s father. Aviles repeated that nothing was going to happen to him, that he was "neutral." Alvarez asked where Villa was, but J.E. did not know where Villa and A.R. were.
J.E. was still in the front passenger seat of the car, with Alvarez behind him, holding the gun to his head, as the car started to leave the motel. As it passed the office, they saw Villa's truck, and they stopped. J.E. heard Aviles tell Alvarez to save A.R. and rescue her from Villa.
A.R. had been sitting in the passenger seat with the couple's dog for about 15 or 20 minutes, when a silver Infiniti passed. A.R. heard Aviles yell, "That's her. There she is, right there" or "There is that bitch right there." A.R. realized Aviles was driving the car, and Alvarez was with her. J.E. was in the backseat, looking scared.
According to J.E., Aviles did not yell anything at that moment. A.R. yelled something out. Alvarez told A.R. to get in the car or he was going to shoot her.
Aviles stopped and reversed the car. Alvarez jumped out of the car with a gun. He told A.R. to get out of the truck. She did, and stood in front of him. He walked toward her a bit. He had the gun pointed at her, and was shifting it between her and J.E. Aviles was screaming at A.R. to get in the car, and to listen to Alvarez and get in the car. A.R. was afraid and did not know what was going on. She told them she was not going to get in the car with them, and that they could kill her right there.
A.R. jumped back in the Tahoe and shut the door. Villa came out of the hotel. He was talking on his cell phone. A.R. jumped out of the Tahoe and started to tell him that Alvarez had a gun, but she did not get to finish the sentence. Alvarez started shooting Villa and walking toward him. As Alvarez advanced on Villa, he told Villa in Spanish that he was going to kill him.
In the moment that Alvarez was pointing the gun at Villa, before he fired, J.E. heard Villa tell Alvarez to calm down, and "No, no, no." Villa did not threaten Alvarez in any way.
The hotel desk clerk, who was having a cordial conversation with Villa as she assisted with the room change, noticed Villa seemed a little nervous and kept looking at some people having an argument in the parking lot. When they finished their business, Villa walked outside. The clerk saw him walking toward the people who were arguing: A.R.; Alvarez, who was standing by a car and whom the clerk believed was the driver; and a female in the passenger seat. A heavyset male ran from the backseat of the vehicle as soon as it pulled up. About the time Villa walked outside, A.R. grabbed onto Alvarez in an apparent attempt to keep him from doing something. They were "tussling," and he was trying to get her away from him. The female in the car was putting her hands up and shaking her head, giving the impression she was telling A.R. to leave Alvarez alone. As Villa walked toward them, Alvarez came toward him with a gun pointed at him. Villa was holding his hands up, saying, "No, no," and backing up a little. He then was shot. He did not have anything in his hands. At no time did the clerk see Alvarez point a gun at A.R. or the person who ran off.
Every time Alvarez took a step, he fired. He shot Villa four times. The shots were fast. Villa did not have a weapon. He had his hands in the air. He started to pivot, but before he could even pivot to turn around and run, Alvarez fired. The shots struck Villa in the torso or abdomen, and he fell on his face. A.R., who by this time was right behind Alvarez, did not see Villa move again after he fell. Alvarez kicked him over and shot him two more times, once in the neck and once somewhere in the head. Alvarez kicked him in the nose, breaking it. A.R. was yelling at Alvarez and trying to hold up Villa's head. Alvarez, who was standing over her, called her a "stupid ass" and told her, "Let him die like the animal that he is." He pointed the gun at her, but there were no bullets, so he flipped the gun over and hit her on top of the head hard enough that she needed eight staples to close the wound.
Aviles screamed at A.R., "[T]hat's what you get, bitch, for messing with the Mexican Cartel." Aviles yelled multiple things. She was "egging it on the whole time," yelling things like what was happening to A.R. was A.R.'s fault. Alvarez got in the Infiniti, and Aviles sped off. J.E. who had fled from the car after the first shots were fired, came running back.
In her statement to Detective Rivera, A.R. never mentioned the term "Mexican Cartel."
According to J.E., he got out of the car after Villa came out of the office and Alvarez went toward him. All Villa had in his hands was money he apparently received as change from paying for the room, and he was talking on his cell phone. Alvarez was pointing the gun at Villa, and J.E. ran because he was afraid he would be shot, as well. When he heard gunshots, he looked back and saw that Alvarez had shot Villa. He heard Aviles tell A.R., "That's what you get, Bitch." He did not remember Aviles mentioning the Mexican Cartel. Defendants left in the Infiniti. Aviles was driving.
A hotel guest was in the room above the front desk around noon on December 22, when he heard two women who were "yelling a lot." He could not make out what was being said, but the yelling continued for about 30 seconds. He then heard five or six gunshots. He moved the curtain to his window, and saw a car in the driveway with a woman driving. A woman called out, "You killed him. You killed him. You killed him." The woman driving the car said, "This is what you get." She then looked up at the hotel guest and said to the man, "Let's go, because people are looking at us." As the car sped off, the man was in the passenger seat.
The hotel guest was unable to identify anyone at trial. When interviewed by Detective Rivera several hours after the shooting, he did not say he heard someone yell "That's what you get" or "You killed him," despite Rivera asking whether he heard anything else.
Soghoian received a call concerning the shooting, at 12:17 p.m., while he was still at the Kirk Street residence. He and Miramontez responded to the Vagabond Inn, which was approximately two miles away. Upon arrival at 12:22 p.m., Soghoian observed a male subject lying on the ground. He had been shot in what appeared to be the head area. J.E. and A.R. were present. A.R. had an obvious head wound, with a significant amount of blood, on the upper left portion of her head. While emergency personnel were working on Villa, A.R. came into the hotel office. She was hysterical and bleeding from the back of the head. She told the clerk the man hit her in the head with a gun.
No knife, gun, or cell phone was recovered from the scene. However, four expended shell casings, head-stamped "Federal 40 S&W," were located in the sidewalk/parking lot area outside the office. A fifth expended casing, bearing the same head stamp, was located in a planter in front of the office. Bullet holes, strike marks, expended bullets and bullet fragments, and a deformed copper jacket from a bullet were found in the area.
The Tahoe was searched. Five Ziploc bags containing approximately two pounds of possible marijuana were found in a suitcase inside the vehicle. There were two or three live shotgun shells, as well as a black nylon holster, in the rear cargo area of the vehicle. Also found in the vehicle were several cell phones and a small bag containing gun cleaning supplies, but no firearms. Two Ziploc bags of possible marijuana and a glass pipe were found in the hotel room in which Villa and A.R. had been staying. A small plastic bag containing what appeared to be methamphetamine was found in Villa's pocket. He had $115 in cash in his wallet, and just under $9 total in cash in two of his pockets.
Aviles's residence was searched again after the shooting. Ten expended cartridge casings were located in the backyard. All bore the same head-stamp as the casings found at the Vagabond Inn. No bullet holes or strike marks were located on the exterior of the residence or on the buildings in proximity to the casings, suggesting the bullets were fired in the air. Subsequent analysis showed the five cartridge casings found at the Vagabond Inn and the 10 found at Aviles's residence all were fired from the same firearm, a .40-caliber semiautomatic handgun.
An autopsy showed Villa was shot through the head, right side of the chest, left side of the abdomen, left hip, and right groin, though not necessarily in that order. There were also two graze wounds, caused by two separate shots, to his left arm. The arm was away from the body when the graze wounds were incurred. The wound to the right chest, which had an entrance near the right collarbone, was consistent with having been fired in a downward angle, assuming Villa was lying down at the time. Stippling found around the entrance wound meant the muzzle of the gun was two to three feet from the skin when the gun was fired. The gunshot to the head entered above and slightly behind the left ear, and exited behind the right ear. This wound could have been inflicted with Villa lying down and the shooter standing over him. The cause of death was perforation of the brain and right femoral vein due to multiple gunshot wounds. All the wounds, except the head wound, potentially were survivable injuries. The head wound, which went through two portions of the brain, was not. Death would have occurred within a few minutes.
No injury to Villa's nose was found during the autopsy. Blood and urine samples showed significant levels of street drugs, but they were not related to the cause of death.
On December 31, defendants and the Infiniti were located at an apartment complex in Los Angeles. Defendants were taken into custody. No firearm or ammunition was found.
Detective Rivera, the lead detective on the case, viewed video surveillance footage from cameras at the Vagabond Inn and the Denny's restaurant directly south of it. All entrances to the parking lots were off South East Avenue. The video footage showed the silver Infiniti enter the Denny's parking lot, just north of Denny's, from the east, headed west. It ended up in the west portion of the Denny's lot, then made a U-turn and headed back east. There was a driveway that permitted travel between the Denny's and Vagabond Inn parking lots. The Infiniti stopped in that driveway, facing north, for a few minutes. It then headed east, toward South East Avenue, and passed out of camera view. It subsequently entered the north driveway of the Vagabond Inn, heading west through the parking lot. It stopped on the back side of the Vagabond Inn. A male individual walked toward the vehicle, while another subject exited the passenger side of the car and stood near it. After some time, the individual who had been in the parking lot walked up to the car and entered the passenger side. The subject who had exited the passenger side reentered the Infiniti, which then drove west, toward Highway 99, and out of camera view. There was no entrance to or exit from either parking lot in that direction.
The pertinent footage taken on December 22 was shown to the jury.
Rivera did not observe any camera footage along the west side of the Vagabond Inn. The Infiniti appeared again as it drove east in the south portion of the Vagabond Inn lot. The car traveled slowly, then stopped about where the pool was, backed up, and stopped in front of the office. Rivera saw the backseat passenger exit and become involved in some type of contact with a blond-haired female inside a Tahoe parked just south of the office. The front passenger door of the Infiniti also opened, and there appeared to be some type of interaction. The female passenger in the Tahoe at one point exited, then reentered, the passenger side of the Tahoe. When the male first exited the Infiniti, Rivera observed that his arm was raised in an outward motion, almost parallel to the ground. The arm was raised toward the Infiniti, then the man took a couple of steps toward the Tahoe as he turned his arm toward the Tahoe, then he turned his arm back toward the Infiniti. Rivera could not make out a gun.
A.R. had blond hair. Rivera had seen the driver of the Tahoe park that vehicle and enter the office about the time the Infiniti passed out of camera view.
Rivera observed a male subject, who resembled the Tahoe's driver, exit the lobby. He reached the north part of the parking lot, then put his hands in the air and began to take a couple steps as the rear passenger of the Infiniti approached him with his arm extended outward and with what appeared to be a gun in his hand. The subject who had exited the office took a few steps backwards, then fell to the ground in the grassy area between the office and the pool. The subject with his arm extended continued to walk toward him, then pointed the gun down at him. While this was going on, the front passenger in the Infiniti, who appeared to be male, ran from the car and out of camera view. The blonde exited the Tahoe and ran over to the male on the ground. The individual with the firearm quickly turned and appeared to point the gun toward her. They had an interaction where they came together at some point, then she went toward the male on the ground. She and the male with the gun appeared to continue to have some type of verbal interaction, then the male entered the back driver's side of the Infiniti, that vehicle having moved forward to the grassy area.
After he entered, the Infiniti traveled five to 10 feet and stopped. The male with the gun reemerged from the back passenger's side and walked over to the female and the male on the ground. The male with the gun kicked the individual on the ground. He then reached down and appeared to retrieve something. He placed it in his pants area, then reentered the Infiniti. The Infiniti headed east, toward South East Avenue, and out of camera view.
II
DEFENSE EVIDENCE
Alvarez testified he had known J.E. some 15 or 20 years. He considered him a friend. Alvarez had known Villa for about two years. J.E. introduced them. Alvarez met A.R. sometime after he met Villa. Later, he was introduced to Aviles.
J.E. came to owe Alvarez about $3,000 for marijuana Alvarez obtained for him from someone else. When J.E. stopped answering Alvarez's telephone calls, Alvarez decided to talk to J.E.'s father, but did not know where he lived. Villa said he would give Alvarez the address, but that Alvarez was not to tell J.E. Alvarez went alone to see J.E.'s father and to ask if he would be responsible for J.E.'s debt. J.E.'s father agreed and said he would give Alvarez a white Jetta. J.E.'s father said he would take it out of his own name, and send it to Alvarez with J.E. the next day. When J.E. told Villa, Villa said no, that he would keep the car and they would talk to Alvarez about paying the money. They never gave Alvarez the car, and J.E. continued to owe Alvarez the money.
J.E. and Villa called Alvarez numerous times to see if he could get more marijuana for them. He refused. Villa went to Alvarez's residence a few days later in the white Jetta. He insisted Alvarez had marijuana and said he (Villa) had a good buyer. Alvarez said he did not want to become more involved, and that Villa had not given him the car. Villa said he wanted to pay Alvarez for the car and would do so with the earnings from the marijuana.
Alvarez became suspicious that J.E. was talking to people to forcefully enter to see if Alvarez had drugs at his house. Alvarez lived at a ranch in Modesto. A person who had a permit to grow marijuana got a few pounds from the permit. He sold some and was going to go to Mexico. He asked Alvarez to hold 20 pounds for him in Alvarez's home. Alvarez said he had his family and his children and did not "want to be committed." When the friend said he had nobody else with whom to leave the marijuana, Alvarez said he could leave it in a small trailer next door to Alvarez's home.
The marijuana stayed in the trailer for two months, but, when Alvarez saw Villa was on the phone, giving other people directions on how to get there, Alvarez told Villa he did have some marijuana. Alvarez's friend had four buckets, each containing about five pounds. Villa saw it, and he and Alvarez loaded it in the car. They went toward Fresno to try to sell it. Villa said he was going to sell the marijuana for about $1,500 per pound. To Alvarez, this meant Villa was supposed to give Alvarez $30,000 for the marijuana. On the trip, they stopped to get gas. Alvarez went inside to pay, and Villa drove off in the car with the marijuana. Alvarez felt relieved, because Villa had been acting suspiciously and had some kind of white drug. When Alvarez told his friend what happened, the friend directed Alvarez to find Villa and charge him the money, because the friend was on his way back from Mexico and needed it.
Alvarez subsequently contacted J.E. to get Villa's telephone number. He told J.E. the money had to be repaid. Alvarez did not want to be in bad standing with his friend who had said he needed the money. J.E. gave Villa's number to Alvarez. When Alvarez called and asked Villa what was happening with Villa's money and why Alvarez had stolen from him, Alvarez responded that he had been watching out for the government and had seen something suspicious, so he had to leave. He had not wanted to steal from Alvarez. Alvarez asked if Villa had any money. Villa said no, and admitted he had wanted to steal from Alvarez. He said he had planned the theft with J.E.; if Alvarez was thinking Villa was going to pay him, to forget about it; and Alvarez should give thanks to God that they did not kill him. Villa repeated that he was not going to pay Alvarez the money, then put a third person on the phone. This person said he was the one who had sent them, and that if Alvarez wanted anything, the man would make sure they would go and kill Alvarez in his home. Alvarez took the threat seriously. It was the last time he asked for his money.
Alvarez subsequently learned from A.R. that Villa had been deported. A short time later, Alvarez learned he was back. By this time, Alvarez was living in the house on Kirk Street. Alvarez told J.E. that he did not want any problems due to the money, that he had taken care of things with his friend, and to just let it go. J.E. said that was fine and they would continue to be friends. Alvarez said he did not want to know about anything else.
According to Alvarez, he told Aviles about all the threats he received. He also told her that Villa owed him about $35,000. Alvarez based this figure on Villa's theft of the 20 pounds of marijuana and his having taken the car J.E. owed to Alvarez.
After this, J.E., who was good friends with Aviles, began going to the house on Kirk Street occasionally. On December 2, Alvarez was returning from seeing his family in Modesto. Aviles called to let him know that J.E. was at the Kirk Street house and was parked with a truck in the yard. Alvarez said that was fine, and he would be home in an hour and a half or two hours.
When Alvarez arrived, J.E. was parked in Alvarez's spot, so Alvarez parked behind him. They greeted each other, then J.E. said he and Villa wanted to take care "of that." Alvarez asked how, and J.E. said the truck belonged to Villa. Alvarez believed he wanted to continue to steal from Alvarez. J.E. said he and Villa had met some other people, and if Alvarez told J.E. and Villa where they could get drugs, they would give him some money. J.E. said they would go and knock down doors and get what they could. Alvarez told J.E. not to "come at [him] with any of that," and that if J.E. wanted to pay him, to leave him the truck. J.E. then telephoned Villa, who arrived a short time later in a taxi. Villa went straight to the truck and removed a shotgun from the cab. He pointed it at Alvarez's chest from a distance of four or five feet and said, "Why do you want to get the truck from [J.E.]? I'll kill you first." Aviles stepped between them and said Villa would have to kill her before he killed Alvarez.
Alvarez, whose car was blocking the truck but who was not doing it "forcefully," told Aviles to turn on the car. They both got in, and Alvarez pulled out in reverse as fast as he could, so they could leave. He did not want problems. He called the police from the car. He and Aviles drove to Chowchilla. When they returned home, nobody was there. They spent the afternoon at the house.
The parties stipulated that on December 2, a 911 call was made concerning an incident at the Kirk Street address.
Sometime later, Villa telephoned Alvarez and said that if Alvarez called the police again, first Villa would kill Alvarez's children, but either way, Alvarez was not going to escape this. Villa said he was going to kill Alvarez, and that Alvarez could be sure of that. Villa knew Alvarez's three young children lived at the location where Alvarez was living when Villa came to get the marijuana. Alvarez believed Villa meant what he said. From talking with J.E., Alvarez knew J.E. and Villa "did things like that." They had guns. To Alvarez's knowledge, Villa was always armed. Alvarez had seen him armed and had also seen his bulletproof vest.
Villa told Alvarez to "count [his] days." After, he stopped taking Alvarez's calls. Alvarez wanted to ask him why he would do that. He and Aviles talked; Alvarez decided they should find one of Villa's family members, ask if it was for the money or the police, and ask them to just forget about it.
J.A. knew where Alvarez's sister lived in Yuba City, so he and defendants drove up there on December 18. When they got close to the sister's house, Alvarez, who was driving, told Aviles to write a letter, and to just put down to tell Villa to call him. Not wanting to upset anybody who lived at the house, Alvarez pulled over some distance away. He told J.A., who knew Villa's sister, to give her the note. J.A. got out of the car with the letter in his hand.
A short time after they left to return to Fresno, Alvarez received a telephone call from Villa. Villa said, "You came looking for me, you motherfucker?" Alvarez said yes, that they should talk about what happened. Alvarez asked why Villa threatened him with a gun. Alvarez told Villa not to do that, and that they were family. Villa responded, "No. Within three days, you're not going to make it to Christmas before I kill you." They started arguing. Alvarez said the money did not matter to him, but his life did. Villa said, "No. Make sure that you're not going to make it to Christmas." Alvarez believed him. Villa hung up on Alvarez. Alvarez continued to call him. Alvarez told him to think things through, but Villa continued to tell him no, that he would know in three days. Then Villa hung up on him and would not answer anymore.
About three days later, Villa telephoned Alvarez and told him to watch himself, that Villa was on his way. Around two hours later, Alvarez received a text message from Villa that said Villa was in front of Alvarez's children. Alvarez believed him. It made him feel "[v]ery badly." Alvarez telephoned his wife and told her to take care of his children. He told her why. She already knew he was having problems with Villa. Alvarez told his wife to look outside. She said she could not see anything, but that the children were with her and she was going to close the door. Although Alvarez's children were not harmed on that day, Alvarez still felt they were threatened based on Villa's text.
Two or three hours later, Villa called Alvarez again and said he was already there. Alvarez said if Villa wanted to take care of things, he knew where Alvarez lived. Villa responded, "You know how I'm going to take care of them. You're [sic] hour has arrived."
Alvarez decided to contact J.E.'s father, because Alvarez knew J.E. was involved. Alvarez drove past the father's house, but did not stop because Villa's truck was there. As Alvarez passed the house, he saw that Villa had the door open and something in his hand. Alvarez believed he was cleaning a gun.
Alvarez returned to the Kirk Street house. There, he received a telephone call from a friend, who said Villa had called the friend, and was paying the friend some money to pick Alvarez up because Villa wanted to kill Alvarez. Alvarez met with the friend in person and had him contact Villa while Alvarez recorded the conversation, which was on speaker phone. The friend told Villa he knew where Alvarez was, and asked how much he would be paid. Villa said he would pay good money and drugs. When the friend pointed out that Alvarez was always together with Aviles and asked what Villa was going to do with her, Alvarez heard A.R. say, "No, not my mother, just him." The friend asked Villa what to do. Villa told the friend to tell him where Alvarez was, and he would pay the friend. The friend refused, saying he knew that if he told, Villa would kill Alvarez and not give the friend anything. Villa then said he was going to send J.E.
After this conversation, Alvarez returned home, where he locked himself, Aviles, and J.A. inside the house. The next morning, he woke to find a cream-colored Tahoe with dark windows parked across the street. He had never seen the vehicle before and could not see inside it.
Alvarez turned on his car to warm it up so he could go and look for J.E.'s father. The father was "an elderly man with experience," and Alvarez wanted him to tell J.E. to stop planning to kill Alvarez. Aviles said she was going to go with him, so they got on Jensen Avenue and went to the home of J.E.'s father. This was around 7:30 or 8:00 a.m. The gun was in the car. Aviles had seen it on Alvarez's person before, but Alvarez did not know if he told Aviles he had it with him at this point. When J.E.'s father was not home, defendants went to a nearby store to get groceries, then headed home. As they arrived, Alvarez saw a black Avalanche in the alley behind the house. The vehicle followed defendants home. Because he was seeing many suspicious things, Alvarez parked on the street instead of in his usual spot. The person in the Avalanche drove by very slowly, looking at Alvarez and making him nervous. Alvarez told Aviles to leave the groceries with J.A., then come with him to follow the Avalanche and get its license plate. As soon as the man in the Avalanche saw them following him, he got on his phone and tried to lose them. They followed him onto the freeway, where he exited. Alvarez then turned around and got back onto Jensen Avenue to look for J.E.'s father again.
Defendants were still unable to find J.E.'s father, so they went home. Once there, Alvarez went into the backyard. He took his handgun, because he had been threatened in the previous days and he saw suspicious cars around his home. He heard two shots at a distance. He discharged 10 shots into the ground at the corner of his house. The cream-colored Tahoe, which was still there, left as soon as Alvarez fired. Alvarez fired because he heard the shots and wanted whoever was firing to know he had something with which to defend himself.
This was the first time Alvarez had ever fired the gun. Alvarez obtained the gun about a week before. He thought he already had it by the time of his trip to Yuba City, although he did not take it with him on that trip. It was a long drive, Alvarez did not have a driver's license, and he was concerned about having a gun in the car if the police pulled him over. He knew he was not supposed to have a gun, having pled guilty in 2012 to felony possession of marijuana for sale.
After Alvarez fired the 10 shots, he put another clip in his gun and put the gun in the car. He wanted to have it with him, because he did not know if he would be fired upon at any moment. He did not call the police because of the threat that had been made against his children.
Defendants went to look for J.E.'s father again. This was around 11:00 a.m. Aviles knew there was danger, but defendants decided to go together. Alvarez thought Villa and J.E. would be less likely to do anything to him if Aviles were with him. When they did not find J.E.'s father, they pulled into Denny's to get something to eat. They did not stop there, however, because Alvarez believed he saw Villa's green truck at the Vagabond Inn. Alvarez just wanted to pass by to see if it was the same truck he had seen the day before at the home of J.E.'s father. Alvarez wanted to get the license number of the truck. He could not decide whether to report it, because of the threat made against his children. He believed he had seen the Tahoe drive past his house at some point.
Alvarez drove through the back of the Vagabond Inn, but did not see the truck. He continued on and saw J.E. going into a room. He knew J.E. well, so he stopped for a few seconds. J.E. came out of the room and walked toward defendants. Alvarez was "very mindful," especially of J.E., because of what he had heard the day before. When he saw J.E. was coming toward him, Alvarez took his gun out from under the seat of the car and placed it on the seat.
When J.E. came up to Alvarez, Alvarez opened the car door and leaned back, so his back would not be toward J.E. Alvarez believed he got out of the car with the gun in his hand. He put it in his waistband in the back. He believed J.E. saw it when Alvarez got out of the car.
J.E. asked what was going on. Alvarez asked why J.E. wanted to kill him, but J.E. professed not to know anything. Alvarez said he had a recording showing J.E. was involved, and said they should go and talk to J.E.'s father. J.E. refused. Alvarez told him, "Get in so you can drive. I don't want anything to happen here, or that we hit each other." Alvarez told J.E. that he (Alvarez) did not want anything to happen, like an accident. Alvarez said, "I don't want to have [to] go and hit you," or, "I don't want something to happen like me having [sic] hitting you." When J.E. said he did not want to drive, Alvarez said okay and told him to get in on the other side. J.E. agreed.
Alvarez asked Aviles to drive. Alvarez did not want to turn his back on J.E., so J.E. got in on the passenger side and Alvarez got in behind him. The plan was to go talk to J.E.'s father. Alvarez saw that J.E. was very afraid. It could have been because J.E. saw Alvarez had a gun, although Alvarez did not threaten him and only said he did not want anything to happen and that they needed to talk to J.E.'s father. When J.E. asked if Alvarez was going to do anything to him, Alvarez said no, that J.E. and Villa were the ones who wanted to hurt Alvarez, and they were going to go talk to J.E.'s father. Aviles told J.E. that he was neutral, and that Alvarez was not going to do anything to him and not to be afraid.
As they continued on, Alvarez asked J.E. what he knew about Villa. J.E. said he knew nothing. When Alvarez said J.E. and Villa were together the day before, saying they were going to kill Alvarez, J.E. again said he did not know anything. The car turned, and it seemed to Alvarez that they saw Villa's green truck. They passed by. Then either Alvarez said to Aviles, or Aviles said to him, "There is Blondie," which was what Aviles called A.R. Alvarez told Aviles to go back, because he wanted to see if it was A.R. It was, and Aviles told her, "Blondie, get in the car. Let's talk." Alvarez asked A.R. where Villa was. A.R. said she knew nothing. Alvarez responded, "What do you mean you know nothing. They want to kill me." Alvarez, who had gotten out of the car with the gun in his hand, told her to get in the car. He did not do so aggressively. He wanted her to go talk with J.E.'s father. He did not see A.R. with a gun, but did not know if anyone was in the truck. Alvarez did not point the gun at A.R. During the argument they had, however, he may have raised his hand with the gun. He never intentionally pointed it at her.
A.R. had gotten out of the truck, then she went back. Alvarez did not know if she and Aviles said anything to each other. It seemed to him that J.E. tried to get out of the car, but Alvarez told him not to get out, that they were going to go talk to J.E.'s father.
Alvarez had gotten back in the car when he saw Villa coming out of the hotel office. Alvarez said to A.R., "I thought you said Santos [Villa] wasn't here." A.R. yelled to Villa that Alvarez had a gun.
Alvarez saw that Villa was coming toward the truck at a quicker pace, so Alvarez came out quickly with his gun so as not to give Villa a chance to get to the truck. Alvarez knew Villa had guns in the truck, and that "they had their deal" that Villa was going to kill Alvarez. Villa was talking on his phone. Alvarez could see that Villa was not holding a gun. Alvarez stood in front of him. Alvarez said he had a recording in which Villa said he was going to kill Alvarez. Villa, who had his hands up in the air, said, "Yes, we're going to kill you, Son-of-a-bitch." Alvarez responded in a loud voice, "No, no, no, we're going to kill each other." Villa said, "Oh, yeah," and quickly put his phone down. Alvarez thought Villa was going to pull a gun, so he fired. When Alvarez saw Villa lower his hands, Alvarez felt forced to shoot him quickly before Villa could shoot Alvarez.
This was not the same truck out of which Villa got the shotgun on December 2, but Alvarez knew Villa had weapons in the vehicles.
Alvarez believed he fired about seven shots. When he first shot, Villa turned around and tried to run. Alvarez ran toward him, because he did not know whether Villa was going to return or what he was going to do. Between being afraid and defending himself, Alvarez knew he had to do it because his life was at stake. When Villa fell, Alvarez was close to him. Alvarez had not yet stopped firing. He fired the final shot from about five feet away, while Villa was falling. The shot went over Villa. Alvarez pointed the gun down at him to make sure he did not have a weapon. When he began firing, Alvarez believed it was the last chance he had to save his life. He did not know how many people Villa and J.E. had, assisting them. They were armed. Alvarez did not know if they would shoot him "from behind or both places." He believed his life was in danger.
Aviles yelled, "There is Blondie coming at you." Alvarez quickly turned and saw A.R. close by. He did not know if he had the gun pointed in her direction, but he saw it was her and did not want to shoot her. She lunged at him, trying to grab his gun, and he tried to slap her hands down. He thought he might have hit her on the head with the butt of the gun to get her off of him. He did not intentionally hit her. He thought he might have said something like, "I don't want to hurt you," or, "What happened to him will happen to you." Hitting her was an accident. He told her to get away, but she came at him again, trying to take the gun from him. That was "when [he] went at her." It was A.R.'s fault Alvarez hit her with the gun, because she came at him.
Alvarez believed Aviles said they should go, because other people were looking at them. Alvarez took that to mean someone might hit him from behind. He got in the car and they drove a short way. Alvarez got out and kicked Villa, who was facedown, in the leg to turn him over. When he was unsuccessful, he bent down and turned Villa over with his hands. Aviles told him something along the lines of they should go, because someone was watching. She knew a few people were planning his death, and did not know if anybody was going to shoot at them. Alvarez recalled Aviles and A.R. yelling at each other, but did not remember the exact words. Alvarez then got in the car and he and Aviles left.
Alvarez explained why he turned Villa over: "Because I remember that some accidents had happened in Mexico with other families, and they would say that if somebody died facedown, the person that killed him couldn't leave there, and his family members would kill him." Alvarez did not know if Villa was going to die.
Alvarez never returned to the Kirk Street address, because he was afraid of Villa's people. He did not call the police, because he was still afraid and, for the moment, did not want to call. He wanted to tell his wife to move to a different address as soon as possible. Because he knew Villa had a lot of people, however, he did not drive to her. Instead, he went to a friend's house in Modesto, told the friend what happened, and said he would call the friend if he needed him to move Alvarez's wife to a different address.
Aviles wanted to call the police, but he asked her to wait a bit, because his children were in danger. He told her that he was going to go to Mexico, and she should go back, as she was not at fault. He later said he was going to turn himself in. Aviles agreed to wait until he decided what he was going to do.
The decision was made to go to Los Angeles the next day or the day after, when J.E. left a message on Alvarez's phone, saying he was looking for Alvarez to kill him. Alvarez decided to let New Year's pass, by which time he felt Villa's people would have calmed down and Alvarez could then go to the police. At some point between the shooting and the trip to Los Angeles, Alvarez got rid of the gun. He did not want to have it anymore. He threw it out so he would not connect himself "with any other things." He also discarded the clothes he was wearing when he shot Villa, because they were stained with blood.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Aviles challenges the sufficiency of the evidence to support her convictions for aiding and abetting first degree premeditated murder (count 1) and assault with a firearm (count 3). Substantial evidence supports both convictions. A. General Legal Principles
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.) "If the circumstances reasonably justify the [trier of fact's] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.) Instead, reversal is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
Aviles was tried as an aider and abettor. "A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 40, quoting People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman).) "Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus — a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea — knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus — conduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.]" (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
" '[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator,' and when the crime is murder, the 'aider and abettor must know and share the murderous intent of the actual perpetrator.' [Citation.] '[A]n aider and abettor will "share" the perpetrator's specific intent 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. Maciel (2013) 57 Cal.4th 482, 518.) " '[A] defendant's intent . . . may be inferred from all of the facts and circumstances disclosed by the evidence. [Citation.]' " (People v. Castaneda (2011) 51 Cal.4th 1292, 1326.)
"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." ' [Citation.]" (People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu).) An aider and abettor may not, however, "be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles. [Citation.]" (Id. at pp. 158-159.)
Although ordinarily mere failure to prevent a crime is not enough to constitute aiding and abetting (People v. Culuko (2000) 78 Cal.App.4th 307, 331), it is among the factors that may be considered, as are presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054; In re Juan G. (2003) 112 Cal.App.4th 1, 5; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) " 'Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. [Citation.]' " (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) B. Premeditated Murder
"All murder which is perpetrated by . . . any . . . kind of willful, deliberate, and premeditated killing, . . . is murder of the first degree." (§ 189.) "[W]illful" simply means "intentional." (People v. Moon (2005) 37 Cal.4th 1, 29.) "[D]eliberate" means " ' "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." ' [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 862-863.) "[P]remeditated" means " ' "considered beforehand." ' [Citation.]" (Id. at p. 863.) Planning, motive, and manner of killing are pertinent to a determination of whether premeditation and deliberation exist (People v. Marks (2003) 31 Cal.4th 197, 230; People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Anderson (1968) 70 Cal.2d 15, 26-27), "but these factors are not exclusive nor are they invariably determinative" (People v. Marks, supra, 31 Cal.4th at p. 230; see People v. Thomas (1992) 2 Cal.4th 489, 517).
"[W]hile premeditation and deliberation must result from ' "careful thought and weighing of considerations" ' . . . '[t]he process of premeditation and deliberation does not require any extended period of time.' " (People v. Bolin, supra, 18 Cal.4th at p. 332.) "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' [Citation.]" (People v. Memro, supra, 11 Cal.4th at p. 863.)
Where an aider and abettor knowingly and intentionally assists a confederate in killing someone, and acts willfully, deliberately, and with premeditation, he or she has formed his or her own culpable intent. (Chiu, supra, 59 Cal.4th at p. 167.) Such an aider and abettor acts with the mens rea required for first degree murder. (Ibid.)
Applying the foregoing principles to the present case, in order for us to sustain Aviles's conviction of first degree premeditated murder as an aider and abettor, the record must contain substantial evidence (a) Alvarez committed murder (the perpetrator's actus reus), (b) Aviles knew Alvarez's intent to murder Villa and, with deliberation and premeditation, intended to assist in that murder (the aider and abettor's mens rea), and (c) Aviles engaged in acts that assisted the murder (the aider and abettor's actus reus). (See People v. Thompson (2010) 49 Cal.4th 79, 117.) We conclude the evidence presented at trial, and inferences that reasonably can be drawn therefrom, satisfy all three requirements.
Viewed in the light most favorable to the prosecution, the evidence showed the enmity between Alvarez and Villa was longstanding, volatile, and clearly known to Aviles. Days before Alvarez shot Villa multiple times and ultimately executed him, Aviles wrote a note to A.R. concerning Villa that, in light of the ongoing animosity, implied a threat against Villa. On the day of the shooting, Aviles accompanied Alvarez in searching for Villa. Jurors reasonably could have inferred Alvarez deliberately armed himself before setting out to find Villa, and that Aviles knew this. (See, e.g., People v. Elliot (2005) 37 Cal.4th 453, 471; People v. Steele (2002) 27 Cal.4th 1230, 1250.) Jurors also reasonably could have rejected the idea either defendant was acting (or believed he or she was acting) in self-defense. (See People v. Silva (2001) 25 Cal.4th 345, 369; People v. Salaz (1924) 66 Cal.App. 173, 181.)
Once at the hotel, Aviles helped Alvarez entice J.E. into the car, so defendants could continue their search for Villa, by telling J.E. that nothing was going to happen to him or that Alvarez was not going to do anything to him, and that he was "neutral." Not a word was said about nothing happening to Villa or, for that matter, to A.R. While Alvarez held a gun pointed at J.E.'s head, Aviles facilitated the search for Villa by driving around the hotel premises.
Once Aviles spied A.R., Alvarez got out of the vehicle with his gun in his hand. Defendants both yelled at A.R. to get in the car with them. According to the hotel desk clerk, Aviles gestured at A.R. to leave Alvarez alone. Upon seeing Villa, who was unarmed, Alvarez announced his intention to kill him, and almost immediately started shooting. Not only did Aviles not drive away, but she made the car immediately accessible to Alvarez for getaway purposes by pulling forward as Alvarez moved toward Villa and executed him. She then acted as Alvarez's lookout, telling him they needed to go because people were looking at them. There was no evidence she registered shock or surprise at what Alvarez had done; instead, she told A.R., "This is what you get." After driving a short distance, she even stopped the car so Alvarez could go back and kick his victim, before ultimately driving Alvarez away from the scene. At no point along the continuum of events did Aviles try to prevent the shooting, despite the fact she willingly stepped between Alvarez and a shotgun several weeks earlier, when Villa was the one holding the gun.
The evidence and reasonably drawn inferences amply demonstrate planning, motive, and manner of killing so as to support a finding Aviles harbored a deliberate and premeditated intent to kill, and knowingly rendered aid to Alvarez in accomplishing first degree murder. (See, e.g., People v. Brady (2010) 50 Cal.4th 547, 564; People v. Campbell, supra, 25 Cal.App.4th at pp. 409-410; cf., e.g., People v. Boatman (2013) 221 Cal.App.4th 1253, 1267-1268; Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, 1278-1279.) C. Assault with a Firearm
To be relevant to premeditation and deliberation, planning need not relate solely to the act of killing. (People v. Pensinger (1991) 52 Cal.3d 1210, 1238, fn. 4.)
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) " '[I]t is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. . . .' [Citation.] Assault is a general intent crime; it 'does not require a specific intent to injure the victim.' [Citation.] '[A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. . . . He, however, need not be subjectively aware of the risk that a battery might occur.' [Citation.]" (People v. Leonard (2014) 228 Cal.App.4th 465, 486.) "The elements of assault with a firearm, under section 245, subdivision (a)(2) include (1) an assault, which requires the intent to commit a battery, and (2) the foreseeable consequence of which is the infliction of great bodily injury upon the subject of the assault. [Citation.]" (People v. Cook (2001) 91 Cal.App.4th 910, 920.)
In order for us to sustain Aviles's conviction of assault with a firearm on A.R. as an aider and abettor, the record must contain substantial evidence (a) Alvarez committed assault with a firearm (the perpetrator's actus reus), (b) Aviles knew Alvarez's intent to assault A.R. with the firearm and intended to assist in that assault (the aider and abettor's mens rea), and (c) Aviles engaged in acts that assisted the assault with a firearm (the aider and abettor's actus reus). (See People v. Thompson, supra, 49 Cal.4th at p. 117.) Since premeditation is not an issue, Aviles need only have formed any intent to assist in A.R.'s assault with a firearm prior to or during commission of that offense. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Moreover, she need not have had advance knowledge of Alvarez's intent to commit the offense. "[A]dvance knowledge is not a prerequisite for liability as an aider and abettor. 'Aiding and abetting may be committed "on the spur of the moment," that is, as instantaneously as the criminal act itself. [Citation.]' " (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742.)
In the present case, the charged assault with a firearm could have been based on Alvarez pointing the gun at A.R. before the shooting, or on him hitting her over the head with the gun after the shooting. (See People v. Miceli (2002) 104 Cal.App.4th 256, 269-270.) We need not determine whether substantial evidence supports Aviles's conviction on both grounds, because we find the evidence sufficient to uphold her conviction as an aider and abettor to Alvarez's striking A.R. with the gun, and there is no affirmative indication in the record that the verdict rested on the other ground. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
The prosecutor so informed the jury.
The evidence and reasonable inferences drawn therefrom show Alvarez had just shot Villa. Aviles, who was sitting in the car close by, waiting to help him make his getaway, clearly knew he still had the gun in his hand. Despite this knowledge, she warned Alvarez that A.R. was coming at him. Then, after Alvarez struck A.R. with sufficient force to open a laceration that required eight staples to close, Aviles — instead of helping her bleeding, pregnant daughter — told A.R., "This is what you get." Even assuming Aviles did not intend for Alvarez to actually injure A.R., or that Alvarez did not realize he was harming her, substantial evidence supports the conviction. (See People v. Wyatt (2010) 48 Cal.4th 776, 779; cf. People v. Butts (1965) 236 Cal.App.2d 817, 836-837.)
II
ADMISSION OF EVIDENCE OF ALVAREZ'S INFIDELITY
Alvarez contends the trial court abused its discretion, and violated his rights to due process and a fair trial, by allowing the prosecution to introduce evidence he had a wife and children and thus was engaging in infidelity by having a relationship with Aviles. Aviles joins. We find no error. A. Background
During in limine motions, the trial court ruled that no evidence Alvarez was married to someone other than Aviles at the time of events would be introduced. The court permitted counsel to reraise the issue should such evidence become relevant.
While cross-examining J.E. and then Rivera, counsel for Aviles elicited that when J.E. was signing a photograph of Aviles he had identified, he told Rivera that Villa was his best friend, and he was willing to go anywhere and would do anything. At the prosecutor's request, a sidebar discussion was held prior to his redirect examination of Rivera. The prosecutor then elicited from Rivera that J.E.'s statement was concerning J.E. being willing to help detectives locate Alvarez. J.E. was willing to drive to Modesto to identify a residence at which Alvarez previously lived. When the prosecutor asked if J.E. knew who else was living there, Aviles's relevancy objection was overruled. Rivera responded that he believed it was Alvarez's wife and children.
At the next recess, the sidebar conference and court's ruling were memorialized for the record. Counsel for Alvarez asserted the "door was [not] opened" concerning the information Alvarez had a wife; moreover, the information was unverified and irrelevant, and was an attempt to "demonize" Alvarez as someone who cheated on his wife. Counsel for Aviles joined. The prosecutor responded that the defense asked Rivera numerous questions about J.E. being willing to do anything to help the detectives; subsequent portions of the interview showed J.E. was referring to being willing to show them where Alvarez was living with his wife; and the prosecutor had — after obtaining the court's permission — followed up on Aviles's line of questioning of Rivera. Counsel for Alvarez pointed out that he had not asked the question; the People had no idea whether Alvarez was lawfully married; and whether he had a wife was irrelevant, particularly when the subject could have been so easily redacted from Rivera's testimony by referring only to Alvarez's children. Counsel for Aviles joined and asserted the Evidence Code section 352 objection should have resulted in that redaction. The prosecutor pointed out that the implication of the defense questioning was that J.E. was willing to do anything to help the police, including making things up, and so it became important to address exactly what he had been talking about with the detectives at that time.
The trial court stated it had initially ruled evidence Alvarez had a wife and children was not relevant and would be excluded. That evidence became highly relevant, however, when defense counsel asked questions about J.E.'s statements regarding being willing to go anywhere and do anything, the suggestion being that he would be willing to lie in order to have Alvarez convicted. The context in which J.E.'s statements were made — that he was willing to help detectives locate Alvarez by going to Modesto to show them where Alvarez's wife and children lived — became very important and relevant at that point. The court concluded: "[A]s to the [Evidence Code section] 352 objection, I just don't see the prejudice in this. That a man is seeing another woman, and he was married, it hardly demonizes him, as the defense stated. I think there is really virtually no prejudice and highly probative, so the [Evidence Code section] 352 objection is overruled." B. Analysis
Except as provided by statute, all relevant evidence is admissible. (Evid. Code, § 351.) " 'Relevant evidence' includes 'evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citation.] In determining the credibility of a witness, the jury may consider, among other things, . . . '[t]he existence or nonexistence of a bias, interest, or other motive' . . . .' [Citation.] 'The credibility of a witness may be attacked or supported by any party, including the party calling him.' [Citation.]" (People v. Harrison (2005) 35 Cal.4th 208, 229.) We review a trial court's determination of relevance for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.)
We find no abuse of discretion in the trial court's determination that evidence Alvarez had a wife and children, while initially irrelevant, became relevant when defense counsel's line of questioning suggested J.E. would lie in order to see Alvarez convicted. The question is whether the evidence — at least insofar as it referred to Alvarez having a wife — should have been excluded pursuant to Evidence Code section 352.
The Attorney General says Alvarez forfeited his claim on appeal because he did not make a timely and specific objection when the evidence was offered. We disagree. It is readily apparent from the record that defendants objected to the evidence they now challenge at sidebar, prior to that evidence being elicited. Moreover, Aviles objected at the time the challenged evidence was presented. Under the circumstances, the overruling of Aviles's objection rendered further objection by Alvarez futile.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Under this statute, "the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) In this regard, "[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. . . . 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
J.E. was an important witness for the prosecution. As a result, the context of his statement to Rivera that he would do anything to help detectives became very significant to rebut the insinuation this meant J.E. would lie to see Alvarez convicted. Although this implication could have been countered without mentioning Alvarez had a wife, we agree with the trial court the evidence was highly probative and virtually nonprejudicial. Even if a person's admission of adultery constitutes a declaration against social interest (see Evid. Code, § 1230; People v. Wheeler (2003) 105 Cal.App.4th 1423, 1425, 1426-1430), here the evidence was no more prejudicial, as that term is used in Evidence Code section 352, than was the evidence of the charged offenses. (See, e.g., People v. Lynch (2010) 50 Cal.4th 693, 758, abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-638.) In light of the high probative value of the evidence as a whole, the trial court acted well within its discretion in concluding that probative value was not substantially outweighed by the probability reference to Alvarez's having a wife would create a substantial danger of undue prejudice to either defendant. (Cf. Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1014, 1026-1027 (Winfred D.).)
Were we to conclude error occurred, we would find no prejudice. Counsel for Alvarez elicited from Rivera that Rivera did not know if Alvarez was legally married, did not know if J.E. knew, and did nothing to verify whether Alvarez was married. Significantly, Alvarez referred to his wife several times during his testimony. Given the somewhat narrative manner in which he testified, and the fact Villa's purported threats against Alvarez's children, the fear those threats allegedly engendered, and what Alvarez did in response were central to Alvarez's explanation of events, it would be unreasonable to assume Alvarez would have fashioned his testimony so as to omit any reference to his wife had the challenged evidence been excluded. Thus, the jury would have learned of Alvarez's wife and children in any event. Although at one point the prosecutor asked Alvarez if he was living with Aviles and not with his wife and children, the trial court sustained a relevance objection and told Alvarez not to answer, and the prosecutor did not pursue the subject. The matter was not used to attack Alvarez's credibility or to paint either defendant as a person of immoral character. (Cf. Winfred D., supra, 165 Cal.App.4th at p. 1038.)
Alvarez presumably could have referred to his wife as the mother of his children. This would not have benefited him to any great extent, however, since it could have implied he had children out of wedlock. We do not believe, in this day and age, having children without benefit of marriage is any more or less prejudicial than engaging in an extramarital relationship.
In light of the foregoing, there is no reasonable probability the jury would have reached a different result had the evidence been excluded from the People's case-in-chief. (See People v. Partida (2005) 37 Cal.4th 428, 439; People v. Whitson (1998) 17 Cal.4th 229, 251; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Nor did admission of the evidence render the trial fundamentally unfair so as to violate due process. (See Estelle v. McGuire (1991) 502 U.S. 62, 70; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
III
PURPORTED ERRORS IN JURY INSTRUCTIONS
Defendants raise numerous claims of instructional error, both with respect to the instructions given and to instructions they now say should have been given. "Even absent a request, the trial court must instruct on the general principles of law applicable to the case. [Citation.] The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1200.) "[T]his duty . . . extends to defenses 'if it appears . . . the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citations.]" (People v. Brooks (2017) 3 Cal.5th 1, 73.) " ' "[A] trial court must instruct on lesser included offenses . . . whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." ' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1215.) "Evidence is 'substantial' only if a reasonable jury could find it persuasive. [Citation.] The trial court's determination of whether an instruction should be given must be made without reference to the credibility of the evidence. [Citation.] The trial court need not give instructions based solely on conjecture and speculation. [Citation.]" (People v. Young, supra, 34 Cal.4th at p. 1200.)
We independently review claims of instructional errors of the types defendants raise. (E.g., People v. Hamilton (2009) 45 Cal.4th 863, 948; People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Waidla, supra, 22 Cal.4th at p. 733.) When considering a claim of error concerning an instruction that was given, "we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 1229; accord, e.g., People v. Tate (2010) 49 Cal.4th 635, 696; People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citations.]" (People v. Carrington (2009) 47 Cal.4th 145, 192.)
"We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions. [Citations.]" (People v. Coddington (2000) 23 Cal.4th 529, 594, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Rather, we assume " 'jurors generally understand and faithfully follow instructions.' [Citation.]" (People v. Delgado (1993) 5 Cal.4th 312, 331.) We also assume they are capable of correlating all instructions they are given. (People v. Sattiewhite (2014) 59 Cal.4th 446, 475.) Finally, we keep in mind "[j]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting." (Boyde v. California (1990) 494 U.S. 370, 380-381.)
With these principles in mind, we turn to defendants' claims. A. The Timing Requirement for Aiding and Abetting Premeditated Murder
Pursuant to CALCRIM No. 401, the trial court instructed, in pertinent part: "To prove that defendant Yolanda Irene Aviles is guilty of a crime based on . . . aiding and abetting [that] crime, the People must prove that, one, the perpetrator committed the crime, two, the defendant knew that the perpetrator intended to commit the crime, three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime, and four, 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 the crime." (Italics added.)
It has been held that a murder is not complete until the victim dies. (People v. Celis (2006) 141 Cal.App.4th 466, 471.) Pointing to J.E.'s testimony that Villa was still alive and trying to speak after defendants left the scene, Aviles asserts she could not properly have been convicted of first degree premeditated murder as an aider and abettor if she formed the requisite mental state after the fatal shot was fired but before Villa died. (See People v. Williams (1997) 16 Cal.4th 635, 676.) She says the italicized portion of CALCRIM No. 401, while accurately stating the general rule regarding formation of the mens rea necessary for aiding and abetting, is incorrect when applied to premeditated murder, because that offense requires malice aforethought and premeditation. She argues the trial court had a sua sponte duty to instruct on the timing issue — the fact the aider and abettor must form the required mental state beforehand, not merely during the commission of the crime — and its failure to do so requires reversal. We find no reasonable likelihood jurors were misled concerning the timing requirement for aiding and abetting premeditated murder.
The Attorney General says the issue has not been preserved for appeal, because Aviles neither objected to CALCRIM No. 401 nor requested clarification of the timing element. Generally speaking, " '[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.]" (People v. Coddington, supra, 23 Cal.4th at p. 603.) "[F]ailure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal [citations]." (People v. Lee (2011) 51 Cal.4th 620, 638.) Here, however, Aviles is claiming the instruction was erroneous, not merely that the court should have clarified certain terms within it. Accordingly, her claim is reviewable under section 1259, despite the lack of objection at trial. (People v. Sattiewhite, supra, 59 Cal.4th at p. 475; see People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.)
The seminal case concerning the definition of aiding and abetting as it currently stands in California is Beeman, supra, 35 Cal.3d 547. There, the state high court concluded there must be proof an aider and abettor acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]" (Id. at p. 560, italics omitted.) The court explained:
"When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime [citation], the aider and abettor must share the specific intent of the perpetrator. By 'share' we mean neither that the aider and abettor must be prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor must seek to share the fruits of the crime. [Citation.] Rather, an aider and abettor will 'share' the perpetrator's specific intent 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. [Citations.]" (Beeman, supra, 35 Cal.3d at p. 560, original italics omitted, italics added.)
The court went on to say: "[A]n appropriate instruction should inform the jury that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (Beeman, supra, 35 Cal.3d at p. 561.) CALCRIM No. 401, as given here, adequately conveys those principles. (See People v. Houston, supra, 54 Cal.4th at p. 1224.)
With respect to malice aforethought, the California Supreme Court has explained: "Murder is the unlawful killing of a person with malice aforethought. (§ 187.) Murder includes both actus reus and mens rea elements. To satisfy the actus reus element of murder, an act of either the defendant or an accomplice must be the proximate cause of death. [Citations.] For the crime of murder, . . . 'there must exist a union, or joint operation of act and intent . . . .' (§ 20.) To satisfy the mens rea element of murder, the defendant must personally act with malice aforethought. [Citation.]" (People v. Concha (2009) 47 Cal.4th 653, 660, italics omitted.)
Pursuant to CALCRIM No. 252, jurors here were told the crimes required proof of the union or joint operation of act and wrongful intent, and specifically that murder required a specific intent and/or mental state. Pursuant to CALCRIM No. 520, they were instructed, in pertinent part:
"The defendants are charged in count 1 with murder. To prove that a defendant is guilty of this crime, the People must prove that, one, the defendant committed an act that caused the death of another person. Two, when the defendant acted, he or she had a state of mind called malice aforethought, and three, . . . he or she killed without lawful excuse or justification.
"There are two types of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if he or she unlawfully intended to kill. . . . Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death was committed. It does not require deliberation or the passage of any particular period of time." (Italics added.)
For an aider and abettor to be convicted of first degree premeditated murder, he or she must have "formed his [or her] own culpable intent." (Chiu, supra, 59 Cal.4th at p. 167.) Pursuant to CALCRIM No. 521, jurors here were instructed, in part: "A defendant is guilty of first degree murder if the People have proven that he or she acted willfully, deliberately and with premeditation. The defendant acted willfully or deliberately if he or she intended to kill. The defendant acted deliberately if he or she carefully weighed the consideration for and against his or her choice and knowing the consequences, decided to kill. The defendant acted with . . . premeditation if he or she decided to kill before completing the act that caused death." (Italics added.)
In addition to the foregoing, jurors were told to consider all the instructions together. The trial court also stated: "Unless I tell you otherwise, all instructions apply to each defendant."
In light of the instructions as a whole, jurors would have understood the instructions on malice aforethought, deliberation, and premeditation applied to Aviles as well as Alvarez. The instructions as a whole adequately conveyed the mental state required for Aviles to be convicted of murder as an aider and abettor. "Absent some circumstance negating malice one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice. [Citation.]" (People v. McCoy (2001) 25 Cal.4th 1111, 1123.) Moreover, " '[i]t would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required.' [Citation.]" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 847, quoting People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166.)
Aviles's reliance on this court's opinion in People v. McDonald (2015) 238 Cal.App.4th 16 (McDonald) does not assist her. In that case, the defendant's cohort snatched a gold chain from around the neck of the 71-year-old victim. The victim was knocked down. She developed an irregular heartbeat and was pronounced dead about an hour after the robbery. The defendant was convicted of first degree felony murder, based on his conduct of waiting while his cohort committed the robbery and then driving the cohort away from the scene. (Id. at p. 19.) We reversed the defendant's murder conviction because the trial court failed to instruct, as to first degree felony murder, that the jury had to find the defendant intended to aid and abet the robbery before or at the time of the act(s) causing death. (Id. at pp. 20-21, 24-25.) We stated: "Because the general instructions given by the court did not inform the jury that defendant had to have aided and abetted the robbery before the acts that resulted in [the victim's] death in order to be found guilty of felony murder, the court had a sua sponte duty to instruct the jury on the timing of defendant's intent. [Citations.]" (Id. at p. 26.) "Taken together, CALCRIM Nos. 540B [(Felony Murder: First Degree — Coparticipant Allegedly Committed Fatal Act)] and 1603 [(Robbery: Intent of Aider and Abettor)], as given in this case, permitted defendant to be found guilty of felony murder even if he did not aid and abet the robbery until after commission of the act that caused [the victim's] death. This was error." (Id. at p. 27.)
McDonald dealt strictly with the complicity of an aider and abettor, and the timing of the formation of the requisite mental state of such a person, with respect to felony murder. (See McDonald, supra, 238 Cal.App.4th at pp. 24, 26, 28.) The legal principles discussed in that opinion did not include malice aforethought and/or deliberation and premeditation, or the aiding and abetting of first degree murder based thereon. Aviles's situation, and the instructions given in the case now before us, are manifestly distinguishable.
Aviles claims her trial attorney should have requested a modification of CALCRIM No. 401 with respect to the timing issue. The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
We have concluded the instructions, considered as a whole, adequately conveyed the applicable legal principles. It follows that Aviles suffered no prejudice as a result of counsel's omission; hence, that omission does not support an incompetent counsel claim. (See People v. Coddington, supra, 23 Cal.4th at p. 603, fn. 32.) B. Initial Aggressor
Alvarez testified that on the day of the shooting, he and Aviles went looking for Villa; when they saw A.R. and then Alvarez saw Villa, Alvarez quickly got out of the car with his gun. He did not want to give Villa a chance to get to the truck, because he knew Villa had guns in the truck. Villa was talking on his cell phone, and Alvarez stood in front of him. Alvarez confronted Villa about the plan to kill Alvarez; when Villa said yes, they were going to kill Alvarez, Alvarez said "no, we're going to kill each other," then Villa agreed and put down his phone, and Alvarez fired multiple times because he thought Villa was going to pull a gun. Alvarez admitted having the gun pointed at Villa, and that, at the time Alvarez fired, Villa's hands were raised. Alvarez also admitted Villa was not holding a gun.
After hearing Alvarez's testimony, the trial court informed counsel it was considering giving the instruction on "self-defense, initial aggressor." No objection was raised.
The trial court subsequently instructed on justifiable homicide in self-defense, the fact a defendant was not required to retreat, and the People's burden of proving beyond a reasonable doubt that the killing was not justified. Without objection, it then instructed, pursuant to CALCRIM No. 3471: "Right to self-defense, mutual combat or initial aggressor. A person who starts a fight has a right to self-defense only if, one, he or she actual [sic], and in good faith, tried to stop fighting, and, two, he or she indicated by word or by conduct to his or her opponent in a way that a reasonable person would understand that he or she wanted to stop fighting, and that he or she had stopped fighting. If a defendant meets these requirements, he or she then had a right to self-defense if the opponent continued to fight."
Aviles now contends it was error to give CALCRIM No. 3471. She says the concept conveyed by the instruction was inapplicable, and the instruction was not supported by the evidence because there was no evidence of a fight. She argues "fight" is vague and does not properly convey the legal principle set forth in section 197. Alvarez joins. The Attorney General argues the instruction was justified by Alvarez's testimony defendants were looking for Villa and, when they found him, Alvarez pointed a loaded gun at him and ran toward him. The Attorney General says Alvarez's conduct in this regard constituted an assault with a firearm, which was sufficient to support a conclusion he was the initial aggressor. We find no cause for reversal as to either defendant.
The Attorney General also says the claim was forfeited by defendants' failure to object to the giving of the instruction. (See People v. Frandsen (2011) 196 Cal.App.4th 266, 278.) We disagree. The instruction affected Alvarez's claim of self-defense, and, by extension, Aviles's culpability as an aider and abettor. We conclude it therefore affected defendants' substantial rights so that no objection was required at trial to preserve their claim. (§ 1259.)
A killing committed in so-called perfect self-defense is neither murder nor manslaughter, but instead is justifiable homicide. (§ 197; People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.) "For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.]" (People v. Randle, supra, at p. 994.) So-called imperfect self-defense, which negates malice aforethought and so reduces the offense to manslaughter, requires an actual but unreasonable belief in the need to defend oneself from such imminent peril. (In re Christian S. (1994) 7 Cal.4th 768, 773.) The prosecution bears the burden of disproving excuse or justification beyond a reasonable doubt. (People v. Frye (1992) 7 Cal.App.4th 1148, 1158-1159.)
Where either type of self-defense is at issue, "the fear must be of imminent harm. 'Fear of future harm — no matter how great the fear and no matter how great the likelihood of the harm — will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.' [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Mere fear the danger will become imminent is not enough. (People v. Lucas (1958) 160 Cal.App.2d 305, 310.) " ' "[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." ' " (In re Christian S., supra, 7 Cal.4th at p. 783.) Antecedent threats made by the deceased against the defendant can be considered by the jury in deciding whether the defendant's conduct and beliefs were reasonable (see People v. Torres (1949) 94 Cal.App.2d 146, 151); however, "threats alone, unaccompanied by some act which induces in defendant a reasonable belief that bodily injury is about to be inflicted, do not justify a homicide. [Citation.]" (People v. Lucas, supra, 160 Cal.App.2d at p. 310.) Although the party killing is not precluded from feeling anger or emotions other than fear, those other emotions cannot be causal factors in his or her decision to use deadly force if the killing is to be justified on a theory of self-defense. The only causation can be the reasonable fear of imminent danger of death or great bodily injury. (§ 198; People v. Trevino (1988) 200 Cal.App.3d 874, 879.)
Jurors here were so instructed.
To rely on self-defense as justification for homicide, "such person, . . . if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed." (§ 197, subd. (3).) Thus, neither type of self-defense may be "invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified. [Citations.]" (In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1.) As applied to this case, this means that if Alvarez first assaulted Villa, then believed Villa was assaulting him, a claim of perfect or imperfect self-defense would be unavailable. (See People v. Valencia (2008) 43 Cal.4th 268, 288.) CALCRIM No. 3471 informed jurors of this principle and what must be done to regain the right to self-defense.
Defendants contend the instruction should not have been given because it was not supported by the evidence. It is true that unsupported theories should not be presented to the jury. (People v. Marshall, supra, 15 Cal.4th at p. 40.) We agree with the Attorney General, however, that Alvarez's act of immediately pointing a loaded gun at Villa was sufficient to trigger the initial aggressor exception to the self-defense doctrine and, hence, constituted sufficient evidence to support the giving of the instruction. " '[I]f one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation.]' " (People v. Salazar (2016) 63 Cal.4th 214, 249.) The evidence will not support a finding the defendant was guilty only of simple assault when it shows he initiated the confrontation by approaching the victim with a cocked gun. (Id. at pp. 249-250.)
Defendants say the Attorney General's argument is unavailing, because it assumes Alvarez was not acting in self-defense when he pointed the gun at Villa. Aviles asserts: "Alvarez pointed the gun at Villa in self defense because he knew that Villa was actively planning to ambush and kill him and he shot Villa moments later because he thought that Villa was reaching for a gun." Aviles also argues that "[w]hen Villa suddenly appeared outside the motel office, Alvarez reacted in self defense. CALCRIM No. 3471 denied him the right to act on the appearance of danger."
Principles of self-defense apply to assault as well as to homicide. (See People v. Adrian (1982) 135 Cal.App.3d 335, 342.)
These assertions ignore the fact that by Alvarez's own account of events, he and Aviles sought Villa out. Such conduct is inconsistent with self-defense. (See People v. Efstathiou (1941) 47 Cal.App.2d 441, 443.) Alvarez also testified that Villa was talking on his phone at the time Alvarez confronted him. Alvarez could see that Villa did not have a gun and had his hands up. The evidence simply does not support a conclusion that at the time Alvarez pointed his gun at Villa, Alvarez faced imminent peril or genuinely believed he did. (See People v. Aris (1989) 215 Cal.App.3d 1178, 1187-1189, disapproved on another ground in People v. Humphrey, supra, 13 Cal.4th at p. 1089.) This is particularly so given that Alvarez could see Villa was not holding a gun, and Alvarez got in front of Villa so Villa would not go near the truck, from which Alvarez believed he might obtain a gun. (See, e.g., People v. Bolton (1979) 23 Cal.3d 208, 214-215; People v. Lombard (1861) 17 Cal. 316, 317, 320, overruled on another ground in People v. Stewart (1865) 28 Cal. 395, 396; People v. Lucas, supra, 160 Cal.App.2d at p. 310.)
Defendants complain that in its heading, which was read to the jury, CALCRIM No. 3471 uses the term "initial aggressor" rather than "initial assailant." They point out that section 197, subdivision (3) uses the term "assailant," and argue "assailant" and "aggressor" are not synonymous and it is error to use "aggressor" in place of "assailant." (See People v. Turpin (1909) 10 Cal.App. 526, 533.) Since the California Supreme Court has used the terms interchangeably in the context of a discussion of CALJIC No. 5.54, CALCRIM No. 3471's counterpart (People v. Crandell (1988) 46 Cal.3d 833, 871-872, overruled on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365), we are not convinced the wording is erroneous. More importantly, assuming error, we fail to discern any prejudice under the circumstances of this case.
Defendants also argue the body of the instruction suggests that an initial aggressor is someone who "starts a fight." They say the term "fight" is vague, and does not sufficiently describe what it means to be an initial assailant who is denied the right to defend against the victim's lawful counterattack. We need not decide whether the term can be interpreted, in the abstract, as encompassing a strictly verbal attack, which would not deny someone the right of self-defense. (See People v. Frandsen, supra, 196 Cal.App.4th at p. 274.) In light of Alvarez's own testimony, there is no reasonable likelihood the jury misunderstood and misapplied the instruction as defendants now claim. (See People v. O'Malley (2016) 62 Cal.4th 944, 994.)
Defendants also complain that the trial court read to the jury the portion of CALCRIM No. 3471's title that referenced "mutual combat." We agree the trial court should have deleted this reference, since the concept was inapplicable under the circumstances of this case. As the Court of Appeal explained in People v. Ross (2007) 155 Cal.App.4th 1033 (Ross), "In ordinary speech, . . . 'mutual combat' might properly describe any violent struggle between two or more people, however it came into being." (Id. at p. 1044.) As used in the context of this state's law of self-defense, however, " 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (Id. at p. 1045.) The phrase was merely included in the title that was read to the jury, however. In light of that circumstance and Alvarez's felonious assault upon Villa, defendants were not prejudiced by mention of the concept. (See, e.g., People v. Cross (2008) 45 Cal.4th 58, 67; People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.)
Citing Ross, supra, 155 Cal.App.4th at page 1049, defendants appear to fault the trial court for failing to define "mutual combat." As the California Supreme Court has recognized, however, Ross dealt with a situation in which, during deliberations, the jury asked for a legal definition of "mutual combat," but the trial court refused to give one and instead told jurors to rely on the ordinary meaning of the words. (People v. Nguyen, supra, 61 Cal.4th at p. 1049; see Ross, supra, 155 Cal.App.4th at p. 1036.) "[A]lthough Ross discussed potential ambiguity in the term 'mutual combat,' it did not hold that a trial court has a sua sponte duty to explain it to the jury. If defendant believed the instruction was incomplete or misleading, he 'had the obligation to request clarifying language.' [Citation.] Moreover, the jury did not request that the trial court clarify the meaning of the term. The trial court did not have a sua sponte obligation to define 'mutual combat.' " (People v. Nguyen, supra, at p. 1051.)
In light of Alvarez's testimony, CALCRIM No. 3471 was supported by the evidence. It did not eliminate the People's burden of proving the killing was unjustifiable and not done in self-defense, nor did it convey that a person could not lawfully use deadly force in self-defense based on appearances.
We recognize that if Alvarez had been found to have acted in self-defense, Aviles could not be held criminally liable. (See People v. Solis (1993) 20 Cal.App.4th 264, 272, disapproved on another ground in People v. Prettyman (1996) 14 Cal.4th 248, 268, fn. 7.) Had jurors concluded Aviles believed Alvarez only intended to act, and was acting, in self-defense, and that Aviles only intended to aid Alvarez in a lawful endeavor, they would have acquitted her (or at least convicted her of something less than premeditated murder) under the other instructions given, because they would have concluded she did not have the mental state necessary to aid and abet premeditated murder. C. Instruction on Completion of Verdict Forms as Directing Verdict
When the trial court memorialized the jury instruction conference for the record, it announced its intention to give CALCRIM No. 640. No objection or request for modification or clarification was made. Accordingly, the trial court subsequently instructed the jury, in pertinent part:
"You will be given verdict forms for guilty and not guilty of first degree murder, second degree murder and voluntary manslaughter. You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty or not guilty on second degree murder only if all of you have found the defendant not guilty of first degree murder. I can accept a verdict of guilty or not guilty of voluntary manslaughter only if all of you have found the defendant not guilty of both first and second degree murder. As with all of the charges in this case, to return a verdict of guilty or not guilty on a count, you must all agree to that decision. Follow the following directions before you give me any completed and signed final verdict forms. Return any unused verdict forms to me unsigned.
"If you all agree that the prove [sic] have proven beyond a reasonable doubt that a defendant is guilty of first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms. If all of you cannot agree whether a defendant is guilty of first degree murder, inform me that you cannot reach an agreement and do not sign or complete any verdict form." (Italics added.)
At the conclusion of the instruction, the court added: "And ladies and gentlemen, when I say do not complete or sign any other verdict forms, this instruction is in reference to the homicide only. You will have other verdict forms that you will complete on the other two charges. And it would probably handy [sic] for each of you to have your own copy, because it does instruct you how to walk through the verdict forms on the homicide. And as I said, you can consider the evidence and degree of crime in any fashion in which you choose to do, but in filling out the verdict forms, you're going to want to pull this out so you can follow the instruction, and it will make it much easier for you."
Aviles now contends the instruction's reference to finding "a defendant" guilty of first degree murder compelled her conviction of that offense. She reasons that Alvarez was "a defendant"; the jury found him guilty of first degree murder; under the instruction, once jurors made that determination, they were required to stop at the first step; as a result, jurors were required to return a verdict of first degree murder against Aviles based solely on their determination of Alvarez's guilt. Aviles says the instruction had the effect of erroneously eliminating the requirement that the jury find she personally deliberated and premeditated, and precluded jurors from finding her guilty of a lesser included offense such as second degree murder or manslaughter, thereby violating her right to due process. We find no reasonable likelihood jurors would have interpreted the instruction in such a manner.
The standard form of the instruction reads "the defendant" (italics added) at this point. The record before us does not reveal how the modification came to be made.
The Attorney General contends Aviles forfeited her claim of error by expressly agreeing to the instruction and failing to object or request clarifying language. The record on appeal does not show express agreement by counsel for Aviles, although it does show a lack of objection or request for clarification. If Aviles was complaining that the instruction was correct in law but too general or incomplete, we would agree with the Attorney General that her claim was not preserved for appeal. (See, e.g., People v. Johnson (2016) 62 Cal.4th 600, 638; People v. Romero and Self (2015) 62 Cal.4th 1, 40.) She is not, however. Rather, she is claiming the instruction, as modified and given to the jury, essentially directed a verdict against her on the charge of first degree murder. Since "to direct a verdict in a criminal case is constitutionally impermissible no matter how strong the evidence [citation]" (People v. Gray (2005) 37 Cal.4th 168, 201), if Aviles is correct, her substantial rights were affected and so no objection or request for clarification was required (People v. Johnson, supra, 62 Cal.4th at pp. 638-639).
As previously explained, when determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record. (People v. Covarrubias (2016) 1 Cal.5th 838, 926.) "When a defendant claims an instruction was subject to erroneous interpretation by the jury, [she] must demonstrate a reasonable likelihood that the jury misconstrued or misapplied the instruction in the manner asserted. [Citation.]" (Ibid.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We consider the arguments of counsel in assessing the probable impact of a challenged instruction on the jury. (People v. Young, supra, 34 Cal.4th at p. 1202.)
In the present case, the trial court told jurors: "Multiple defendants. Both defendants in this case are charged with the same crimes. You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately. If you cannot reach a verdict on both of the defendants, or on any of the charges against any defendant, you must report your disagreement to the court and you must return your verdict on any defendant or charge on which you have unanimously agreed." (Italics added.)
This instruction made clear that the charges were to be considered separately against each defendant. The prosecutor did not argue to the contrary, but instead argued the evidence and criminal liability separately as to each defendant. He also presented a scenario in which Alvarez could be found guilty of first degree murder while Aviles was found to have committed second degree murder. Counsel for Aviles began his summation by stating: "Let's make one thing clear from the word go. The case of the People versus Irene Yolanda Aviles is separate and distinct from the case of the People versus Cosmen Alvarez. The legal issues concerning whether or not self-defense applies, imperfect self-defense applies, or it doesn't apply at all does [sic] not involve Irene Aviles, and the factual contentions that were being made to you by Cosmen Alvarez, when he was with [sic] testifying before you, are not the ones we are going to be adopting."
In light of the instructions as a whole and the arguments of counsel, there is no reasonable likelihood the jury would have understood the challenged portion of CALCRIM No. 640 to mean that if jurors found Alvarez guilty of first degree murder, they must also find Aviles guilty of that crime. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Espinoza (1992) 3 Cal.4th 806, 823-824.) Had such a likelihood existed, it seems equally likely counsel for Aviles would have objected or sought clarification at trial on this basis. (See People v. Young, supra, 34 Cal.4th at p. 1203.) We find no basis on which to conclude the jury misinterpreted CALCRIM No. 640 or was confused in any manner concerning the need to make a separate determination that Aviles herself possessed the mens rea necessary to convict her of premeditated murder as an aider and abettor.
Aviles points to the prosecutor's telling the jury that when someone aids and abets a crime, they are "equally guilty." In context, the prosecutor said: "So the defendants can be guilty of murder or these charges in two different ways. They can commit them themselves. In that case they're the perpetrator and for purposes of this discussion, I have highlighted Cosmen Alvarez, because he's the one that actually shot and killed Jose Villa, or, that person could have aided and abetted the crime. And when someone aids and abets a crime, whether it's murder, or kidnapping, or assault with a firearm, the law says that they're equally guilty as long as they have the requisite state of mind." (Italics added.) In light of the emphasized portion, the prosecutor's argument does not alter our conclusion.
Aviles cites us to People v. Petznick (2003) 114 Cal.App.4th 663 (Petznick). In that and similar cases (e.g., People v. Hajek and Vo, supra, 58 Cal.4th at pp. 1216-1219; People v. Wilson (2008) 44 Cal.4th 758, 802-805), the trial court instructed, in the context of the torture-murder special circumstance, that one of the elements jurors had to find was that a defendant — rather than the defendant — had the requisite intent. The instruction permitted the jury to find the special circumstance true without finding the defendant personally intended to torture, a violation of the defendant's right to due process and trial by jury, and contrary to California Supreme Court precedent in People v. Davenport (1985) 41 Cal.3d 247, 271. In each instance, error was found, and the only question was whether it was harmless beyond a reasonable doubt. (People v. Hajek and Vo, supra, 58 Cal.4th at pp. 1217-1218; People v. Wilson, supra, 44 Cal.4th at pp. 804-805; Petznick, supra, 114 Cal.App.4th at pp. 685-686.)
The foregoing cases concern error in instructing on an element of a special circumstance, not an ambiguity in an instruction on how to handle the verdict forms. They thus are distinguishable. Significantly, in Petznick, the Court of Appeal noted, in finding the error prejudicial, that it was not cured by the argument of counsel or other instruction. (Petznick, supra, 114 Cal.App.4th at p. 686.) Here, by contrast, any ambiguity or uncertainty was resolved by the other instructions and the argument of counsel. D. Second Degree Murder as a Natural and Probable Consequence of Aiding and Abetting Kidnapping
After the trial court indicated it would not instruct on felony murder, the People requested that it give CALCRIM No. 402 (Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)). The court found the instruction appropriate, reasoning that the jury could conclude defendants kidnapped J.E. to find Villa and kill him, and, if the jury found those facts, then the killing was a natural and probable consequence of the kidnapping. Neither defendant voiced any objection. Pursuant to the instruction, the trial court subsequently told the jury:
We fail to see how, if jurors conclude the intent was to find Villa and kill him, the killing would not constitute first degree premeditated murder. The trial court posited a second possible scenario during its discussion of the felony-murder rule, to wit: that the kidnapping occurred to take J.E. to his father's house to try to resolve the conflict. We will assume a scenario existed based on which jurors could have found second degree murder was a natural and probable consequence of the kidnapping.
"The defendants are charged in count 2 with the [sic] kidnapping, and in count 1, first degree murder. Second degree murder is a lesser
charge to first degree murder, as charged in count 1. You must first decide whether defendant is guilty of kidnapping. If you find the defendant is guilty of this crime, and you conclude a defendant is not guilty of first degree murder, you must then decide whether he or she is guilty of second degree murder. Under certain circumstances, a person who's guilty of one crime may also be guilty of other crimes that were committed at the same time. To prove a defendant is guilty of second degree murder, the [P]eople must prove that, one, the defendant is guilty of kidnapping, two, during the commission of kidnapping, a co-participant in that kidnapping committed the crime of second degree murder, and three, under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the second degree murder was a natural and probable consequence of the commission of the kidnap. A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. 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 second degree murder was committed for a reason independent of the common plan to commit the kidnapping, then the commission of the second degree murder was not a natural and probable consequence of kidnapping. To decide whether the crime of kidnapping was committed, please refer to the separate instructions that I will give you on that crime." (Italics added.)
The written instruction, which was provided to jurors in their deliberations, gave this sentence as: "You must first decide whether a defendant is guilty of Kidnapping." (Italics added.)
Aviles now contends errors in the instruction made a second degree murder verdict based on a natural and probable consequences theory unavailable to her, and unduly restricted her opportunity to be convicted of second degree murder as a lesser included offense of first degree murder. She bases her claim on the fact (1) the jury was required to find that a defendant was not guilty of first degree murder, and Alvarez was "a defendant" convicted of first degree murder; (2) the nontarget offense was described as second degree murder, rather than simply murder, thereby requiring the jury to find the actual killer committed second degree murder; and (3) the provision concerning second degree murder being committed for a reason independent of the common plan to commit kidnapping was an incorrect statement of the law. We agree error occurred, but conclude it was harmless.
Once again, the Attorney General claims Aviles forfeited the issue by failing to object to the instruction or request clarification in the trial court. Once again, we find no forfeiture. Aviles claims CALCRIM No. 402, as given, was not a correct statement of law, and the errors affected her right to have the jury determine every material issue presented by the evidence by affecting the jury's consideration of a lesser included offense to first degree murder. (See People v. Cunningham, supra, 25 Cal.4th at p. 1007.) No objection was required to preserve the issue for appeal. (§ 1259; see, e.g., People v. Johnson, supra, 62 Cal.4th at pp. 638-639; People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
" ' "A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime." ' [Citation.] 'Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.' [Citation.]
"A nontarget offense is a ' "natural and probable consequence" ' of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] 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.]" (Chiu, supra, 59 Cal.4th at pp. 161-162.)
In light of the foregoing, "when a particular aiding and abetting case triggers application of the 'natural and probable consequences' doctrine, . . . the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Prettyman, supra, 14 Cal.4th at p. 262, fn. & italics omitted.)
A person convicted of murder under the natural and probable consequences doctrine can be found guilty only of second degree murder, even where the direct perpetrator is found guilty of first degree premeditated murder. (Chiu, supra, 59 Cal.4th at p. 166.) At least where, as here, the prosecution is not proceeding solely on a theory of first degree felony murder, second degree murder is a lesser included offense of first degree murder. (People v. Taylor (2010) 48 Cal.4th 574, 623.) A trial court has a sua sponte duty to instruct on a lesser included offense "when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged." (People v. Koontz (2002) 27 Cal.4th 1041, 1085.)
Examining CALCRIM No. 402 as given, we find no reasonable likelihood jurors would have been misled by the distinction drawn in the written instruction between "the defendant" and "a defendant" in the following provision: "You must first decide whether a defendant is guilty of Kidnapping. If you find the defendant is guilty of this crime and you conclude a defendant is not guilty of First Degree Murder, you must then decide whether he or she is guilty of Second Degree Murder." The term "a defendant" was broad enough to encompass Aviles as well as Alvarez, in addition to which jurors were told to decide whether he or she was guilty of second degree murder. Jurors would have understood they were to determine whether Aviles was guilty of kidnapping and, if they concluded she was not guilty of first degree murder, they then were to determine whether she was guilty of second degree murder.
The designation of the nontarget offense as second degree murder, rather than simply murder, was error, however. Under the circumstances of the case, it required jurors, before they could convict Aviles of second degree murder under the natural and probable consequences doctrine, to find Alvarez committed second degree murder. There is a reasonable likelihood jurors believed that once they found Alvarez committed first degree murder, CALCRIM No. 402 no longer applied with respect to Aviles.
It was also error to include the language about second degree murder not being a natural and probable consequence of kidnapping if it was committed for a reason independent of the common plan to commit the kidnapping. Several months before defendants' trial, the California Supreme Court held the sentence "does not currently state the law. . . . To establish aiding and abetting liability under the natural and probable consequence doctrine, the prosecution must prove the nontarget offense was reasonably foreseeable; it need not additionally prove the nontarget offense was not committed for a reason independent of the common plan to commit the target offense." (People v. Smith (2014) 60 Cal.4th 603, 614.)
The sentence has since been removed from the standard instruction.
These errors do not entitle Aviles to reversal of her first degree murder conviction. In a noncapital case, the failure properly to instruct the jury on a lesser included offense requires reversal "only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 868; accord, People v. Lasko (2000) 23 Cal.4th 101, 111; see Watson, supra, 46 Cal.2d at p. 836.) Although the mere fact of conviction of the greater offense is insufficient to establish a lack of prejudice (People v. Breverman (1998) 19 Cal.4th 142, 178, fn. 25 (Breverman)), "[e]rror in failing [correctly] to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted [or incorrect] instructions adversely to defendant under other properly given instructions. [Citation.]" (People v. Koontz, supra, 27 Cal.4th at pp. 1085-1086.)
Jurors were given the option of convicting defendants of unpremeditated second degree murder based on either express or implied malice. They were told murder was murder of the second degree unless the People proved beyond a reasonable doubt that it was murder of the first degree. They were instructed on premeditation and deliberation. They were also told provocation could reduce a murder from first degree to second degree, and murder to manslaughter, and they were instructed on voluntary manslaughter based on imperfect self-defense. They were also instructed on aiding and abetting principles, and the requisite mens rea for aider and abettor liability. Jurors thus had the option of convicting Aviles of second degree murder by means other than the natural and probable consequences theory. They rejected that option, and instead found her guilty of first degree premeditated murder. In so doing, they necessarily concluded she knew Alvarez intended to murder Villa, and she intended to, and did, aid Alvarez's commission of that crime. Thus, they found her guilty of the intended crime on direct aiding and abetting principles, and did not resort to the natural and probable consequences theory of liability. (See Chiu, supra, 59 Cal.4th at pp. 166-167; People v. McCoy, supra, 25 Cal.4th at p. 1117.) There is no reasonable probability Aviles would have been convicted of second degree murder absent the errors in CALCRIM No. 402 as it was given here. (See, e.g., People v. Gonzalez (2018) 5 Cal.5th 186, 200, 209; People v. Rogers, supra, 39 Cal.4th at pp. 868, 884; People v. Barnett (1998) 17 Cal.4th 1044, 1156.) E. Voluntary Manslaughter Based on Heat of Passion
Aviles argues the focus of CALCRIM Nos. 520 (First or Second Degree Murder With Malice Aforethought) and 521 (First Degree Murder) was on the actual killer. She appears to suggest jurors would not have understood those instructions as applying to her. We reject any such notion. As we previously observed, "Jurors are presumed able to understand and correlate instructions . . . ." (People v. Sanchez, supra, 26 Cal.4th at p. 852.)
As described in the statement of facts, ante, the evidence at trial revealed longstanding hostility between Alvarez and Villa that sometimes resulted in verbal, written, and even physical threats of harm. There was evidence Villa threatened to kill Alvarez and Alvarez's children; Villa was trying to enlist others to help kill Alvarez and Alvarez knew of the plot; and Aviles was aware of what was going on.
The trial court instructed the jury, in pertinent part, on justifiable homicide based on self-defense, including consideration of antecedent threats by Villa, and on voluntary manslaughter based on imperfect self-defense, again including consideration of antecedent threats by Villa. The court did not instruct on voluntary manslaughter based on heat of passion. Aviles now claims the trial court had a sua sponte duty to so instruct. Alvarez joins her argument. We conclude any error was harmless.
Counsel for Alvarez originally requested that CALCRIM No. 570 be given on the subject, but then withdrew his request for reasons not revealed by the record.
Murder is "the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) " 'Generally, the intent to unlawfully kill constitutes malice. [Citations.] "But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense' . . . ." [Citation.] Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation].' " (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye), italics omitted; accord, People v. Barton (1995) 12 Cal.4th 186, 200-201.)
"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (Breverman, supra, 19 Cal.4th at p. 162.) "[A] speculative inference that depends on the jury ignoring substantial contrary evidence is not enough to require the court to instruct on a lesser included offense. [Citations.]" (People v. Harris (2008) 43 Cal.4th 1269, 1298, fn. 10.) "We review the trial court's failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant [citations]." (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
"A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶] ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " [Citation.]' [Citation.] '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]' [Citation.]" (Moye, supra, 47 Cal.4th at pp. 549-550.) No specific type of provocation is required, and "the passion aroused need not be anger or rage, but can be any ' " '[vi]olent, intense, high-wrought or enthusiastic emotion' " ' [citation] other than revenge [citation]." (Breverman, supra, 19 Cal.4th at p. 163.) " 'To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene.' [Citation.]" (People v. Rangel, supra, 62 Cal.4th at p. 1225.) "To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.]" (Moye, supra, 47 Cal.4th at p. 550.)
"[P]rovocation sufficient to reduce murder to manslaughter need not occur instantaneously, but may occur over a period of time." (People v. Wharton (1991) 53 Cal.3d 522, 569; see People v. Wright (2015) 242 Cal.App.4th 1461, 1486.) " ' "However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . ." [Citation.]' " (Moye, supra, 47 Cal.4th at p. 550.) "[I]t is not sufficient that a person 'is provoked and [then] later kills.' [Citation.]" (People v. Nelson (2016) 1 Cal.5th 513, 539.)
We question whether the record contains substantial evidence of either prong, as to either defendant. (See Moye, supra, 47 Cal.4th at pp. 551-554.) Defendants argue, however, that jurors could have found they acted out of intense rage or fear. (See, e.g., Breverman, supra, 19 Cal.4th at pp. 163-164; People v. Mitchell (1939) 14 Cal.2d 237, 242; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139-1141.) We will assume this is so, and turn to the question of prejudice.
For the last 20 years, the California Supreme Court consistently has held that erroneous failure to instruct on a lesser included offense — including voluntary manslaughter — in a noncapital case is an error of state law alone. Hence, it is assessed under the Watson standard, i.e., whether it is reasonably probable the defendant would have obtained a more favorable outcome at trial had such an instruction been given. (Breverman, supra, 19 Cal.4th at p. 165; Watson, supra, 46 Cal.2d at p. 836; see Moye, supra, 47 Cal.4th at pp. 557-558.) The state high court has expressly "reject[ed] any implication that the alleged error at issue in this case — the failure to instruct sua sponte on an uncharged lesser included offense, or any aspect thereof — is one which arises under the United States Constitution." (Breverman, supra, at p. 165.)
At the same time, the court has stated that "[i]f the issue of provocation or imperfect self-defense is . . . 'properly presented' in a murder case [citation], the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder . . . . [Citations.]" (People v. Rios (2000) 23 Cal.4th 450, 462, italics omitted.) The court has recognized that "[i]nstructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict. [Citations.]" (People v. Chun, supra, 45 Cal.4th at p. 1201; see Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Under Chapman, we must consider what effect the error had upon the guilty verdict in this case, and so we must look "to the basis on which 'the jury actually rested its verdict.' [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)
Because malice is an element of murder, at least one appellate court has concluded that "the failure to instruct on provocation where warranted is an error of federal constitutional dimension" and so is assessed under the Chapman standard. (People v. Thomas (2013) 218 Cal.App.4th 630, 641-642.) We need not decide whether we agree with this reasoning in light of Breverman and its progeny (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), because we conclude the purported error was harmless under either standard of prejudice.
" ' "[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury." [Citations.]' " (People v. Elliot, supra, 37 Cal.4th at p. 475.)
Such is the situation here. Once the jury rejected defendants' claims of reasonable and imperfect self-defense, there was little if any evidence remaining to support a determination they acted rashly or impulsively while under the influence of strong passion for reasons unrelated to their perceived need for self-defense. (See Moye, supra, 47 Cal.4th at p. 557; People v. Demetrulias (2006) 39 Cal.4th 1, 24.)
More importantly, jurors were instructed, pursuant to CALCRIM No. 521, that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated." They were also told, pursuant to CALCRIM No. 522: "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are up to you to decide. If you conclude that the defendants committed murder, but were provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also consider the provocation in deciding whether the defendant committed murder or manslaughter." "By finding defendant[s were] guilty of first degree murder, the jury necessarily found defendant[s] premeditated and deliberated the killing. This state of mind, involving planning and deliberate action, is manifestly inconsistent with having acted under the heat of passion — even if that state of mind was achieved after a considerable period of provocatory conduct — and clearly demonstrates that defendant[s were] not prejudiced by the failure to [instruct on voluntary manslaughter based on heat of passion]." (People v. Wharton, supra, 53 Cal.3d at p. 572; accord, People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v. Peau (2015) 236 Cal.App.4th 823, 830-832; People v. Speight (2014) 227 Cal.App.4th 1229, 1246; People v. Millbrook, supra, 222 Cal.App.4th at p. 1138; but see People v. Berry (1976) 18 Cal.3d 509, 518 ; People v. Ramirez (2010) 189 Cal.App.4th 1483, 1487-1488.)
We conclude the record necessarily demonstrates the jury would have returned the same verdict of first degree murder, as to each defendant, even if the trial court had instructed on heat-of-passion voluntary manslaughter. Any error was harmless. (See People v. Manriquez, supra, 37 Cal.4th at p. 586.) F. Involuntary Manslaughter
Aviles next contends the trial court erred by failing to instruct on aiding and abetting involuntary manslaughter as a lesser included offense of murder. She says the evidence left room for doubt whether she acted with malice, and the jury could have found that although she lacked malice, she was responsible for the killing, based on the misdemeanor-manslaughter rule, for aiding and abetting Alvarez in brandishing a firearm or assault with a deadly weapon. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1145; People v. Nieto Benitez (1992) 4 Cal.4th 91, 107-108; People v. Brothers, supra, 236 Cal.App.4th at pp. 34-35; People v. Evers (1992) 10 Cal.App.4th 588, 596.) We find no basis for reversal.
"Section 192, subdivision (b), defines involuntary manslaughter as the unlawful killing of a human being without malice 'in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. . . .' " (People v. Gutierrez, supra, 28 Cal.4th at p. 1145.) Generally, involuntary manslaughter is a lesser included offense of murder. (Ibid.; People v. Lewis (2001) 25 Cal.4th 610, 645.)
" 'Involuntary manslaughter is . . . inherently an unintentional killing.' [Citations.]" (People v. Hendricks (1988) 44 Cal.3d 635, 643.) "An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill. [Citations.]" (People v. Rogers, supra, 39 Cal.4th at p. 884.) A speculate inference is not enough. (People v. Harris, supra, 43 Cal.4th at p. 1298, fn. 10.)
We question whether substantial evidence supported the giving of an instruction on aiding and abetting involuntary manslaughter. (See People v. Brothers, supra, 236 Cal.App.4th at pp. 34-35.) Assuming the trial court erred by failing so to instruct, however, the error was harmless under any standard in light of the jury's verdict convicting Aviles of first degree premeditated murder. (People v. Rogers, supra, 39 Cal.4th at p. 884; People v. Gutierrez, supra, 28 Cal.4th at p. 1145; People v. DeJesus (1995) 38 Cal.App.4th 1, 22.)
We recognize that conviction on the greater offense does not automatically render harmless the erroneous failure to instruct on a lesser, necessarily included offense. (See Breverman, supra, 19 Cal.4th at p. 178, fn. 25.) Thus, had Aviles been convicted only of second degree murder, her claim of prejudice might have more force. Instead, "[b]y finding [Aviles] guilty of first degree murder in the face of exhaustive instructions pertaining to the lesser included offenses of second degree murder and voluntary manslaughter, the jury reached the factual conclusion that [Aviles] acted with [express] malice aforethought, deliberation, and premeditation, and necessarily rejected" any claim she was guilty only of involuntary manslaughter. (People v. Barnett, supra, 17 Cal.4th at p. 1156.) G. Accident
Aviles asserts the jury's verdict did not resolve the issue of involuntary manslaughter " 'in another context' based on 'other properly given instructions,' " because "the instructions on aiding and abetting a murder with malice aforethought were not 'properly given.' " In so arguing, she harks back to her claims regarding CALCRIM Nos. 401, 402, and 640. We have rejected her claims with respect to CALCRIM Nos. 401 and 640, and reject their assertion here. (See People v. Barnett, supra, 17 Cal.4th at p. 1156, fn. 81.) The errors we found with respect to CALCRIM No. 402 do not alter our conclusion with respect to involuntary manslaughter, since the jury was instructed on, and rejected, unpremeditated second degree murder.
A.R. testified that after he shot Villa, Alvarez "flipped the gun real fast and hit [her] in the head with it," hard enough that eight staples were needed to close the wound. Soghoian confirmed that when he saw A.R. at the scene of the shooting, she had an "obvious" head wound with a "significant amount of blood." The hotel desk clerk confirmed A.R. said "he" hit her in the head with a gun.
Alvarez testified that after he stopped firing, Aviles yelled at him that A.R. was coming. Alvarez said he did not want to hit A.R., but she lunged at him and he thought he might have hit her with the gun on the head to get her off of him. Asked to characterize the way he hit her with his hand, Alvarez responded, "Just for her to get away from me so another accident wouldn't happen." He denied intentionally hitting her. She came at him and tried to grab the gun, so he made what was described for the record as a downward slapping motion, to lower her hands. That was when he thought he hit her with the butt of the gun, "hard." Hitting A.R. was an "accident." He told her to get away, but she came at him again and tried to take the gun from him, and that was when he "went at her." It was her fault he hit her, because she came at him. He never intentionally pointed a gun at A.R.
The prosecutor argued to the jury that assault with a firearm, as charged in count 3, could be based either on Alvarez pointing a gun at A.R. or on him hitting her over the head with the gun. Counsel for Alvarez argued the video of the incident showed Alvarez never pointed a gun at A.R., and it further showed he did not hit her with the gun on purpose.
The trial court did not instruct on accident, and it appears no party asked it to do so. Alvarez now says his trial attorney was ineffective for failing to request an instruction on accident, in accordance with CALCRIM No. 3404, with respect to count 3. Aviles joins. We reject the claim.
Insofar as is pertinent, CALCRIM No. 3404 would have told jurors: "[The defendant is not guilty of ___ <insert crime[s]> if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of ___ <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]"
"Normally, persons who commit an act through misfortune or by accident with no evil design, intention or culpable negligence are not criminally responsible for the act. [Citation.]" (People v. Calban (1976) 65 Cal.App.3d 578, 584; see § 26, par. Five.) CALCRIM No. 3404 embodies this principle. (People v. Anderson (2011) 51 Cal.4th 989, 996.) That the law recognizes the defense of accident does not mean the trial court has a sua sponte obligation to instruct thereon, however, since a defendant presents evidence of accident in an attempt to negate or rebut the prosecution's proof of an element of the offense. (Ibid.) Statutory provisions codifying the defense of accident " 'are now unnecessary restatements, in a defense format, of the requirements of the definitional elements of an offense. . . .' [Citation.] A trial court's responsibility to instruct on accident therefore generally extends no further than the obligation to provide, upon request, a pinpoint instruction relating the evidence to the mental element required for the charged crime." (Id. at p. 997.)
Defendants recognize the trial court here had no sua sponte duty to instruct on accident, and so frame their claim of error as one of ineffective assistance of counsel. As previously set out in more detail, ante, in order to establish such a claim, defendants must show both deficient performance and prejudice, i.e., a reasonable probability of a more favorable result. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
"A trial court must give a pinpoint instruction, even when requested, only if it is supported by substantial evidence. [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 214-215.) We will presume defendants would have been entitled to an instruction on accident upon request (see People v. Anderson, supra, 51 Cal.4th at p. 998, fn. 3), although we have serious reservations on this point.
Assuming a reasonably competent attorney would have requested an instruction on accident, we discern no prejudice. First, the point that an act committed by accident does not constitute assault with a firearm was made clear by the instructions given. (See People v. Anderson, supra, 51 Cal.4th at p. 997; People v. Corning (1983) 146 Cal.App.3d 83, 88-89 & fn. 3.) Jurors were told the crimes and other allegations charged required proof of the union or joint operation of act and wrongful intent, and that assault with a firearm required that the person intentionally commit the prohibited act and do so with a specific intent and/or mental state. Jurors were told that to prove guilt of assault with a firearm as charged in count 3, the People had to prove, inter alia, "the defendant did an act of [sic] with a firearm that by its nature would directly and probably result in the application of force to a person . . . [and] the defendant did that act willfully . . . . Someone commits an a[ct] willfully when he or she does it willfully or on purpose. It is not required that he or she intend to break the law . . . [or] hurt someone else . . . . The People are not required to prove that the defendant actually intended to use force against someone when he or she acted."
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "The mens rea is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery." (People v. Colantuono (1994) 7 Cal.4th 206, 214, superseded by statute on another ground as stated in People v. Conley (2016) 63 Cal.4th 646, 660, fn. 4.) "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
" 'The word "willfully" as generally used in the law is a synonym for "intentionally," i.e., the defendant intended to do the act proscribed by the penal statute.' [Citation.]" (People v. Hagedorn (2005) 127 Cal.App.4th 734, 744, fn. 6; see § 7, subd. (1).) Under the instructions given, if jurors had believed Alvarez's testimony that he did not intentionally strike A.R., they necessarily would have acquitted defendants on count 3 (assuming, which we do for sake of argument, they determined Alvarez did not intentionally point the gun at A.R.).
Moreover, the video recordings of the incident and the extent of A.R.'s injury (which jurors were instructed they could consider) belie any claim of accident. The videos (which we have viewed) clearly show Alvarez essentially clubbing A.R. over the head with the gun.
Because the absence of an instruction on accident did not prejudice them, defendants fail to make the requisite showing that, but for their attorneys' asserted deficiency, there is a reasonable probability that a determination more favorable to them would have resulted. Accordingly, their claim of ineffective assistance of counsel fails. (See People v. Lewis, supra, 25 Cal.4th at p. 646.) H. Reasonable Belief in Consent
J.E. testified that he did not get into the Infiniti of his own free will, but because he was scared for his life. Alvarez was pointing the gun at him and said he was going to break or shoot J.E.'s legs and was going to kill J.E. if J.E. did not get in the car.
Alvarez testified that when J.E. first walked up to the Infiniti at the hotel, Alvarez put the gun on the car seat. When J.E. came closer, Alvarez opened the car door and exited the vehicle. Alvarez thought he got out of the car with the gun in his hand, and that J.E. saw the gun when Alvarez exited the car. Alvarez put the gun in his waistband in back. He thought J.E. saw "the whole movement." J.E. said it was not true that he and Villa wanted to kill Alvarez. Alvarez said if it was not true, they should go and talk to J.E.'s father so they could take care of the situation. J.E. refused. Alvarez asked why not, if J.E. was saying he had nothing to do with it. Alvarez told J.E. to get in the car and drive, and that Alvarez would get in the back. J.E. said, "No." Alvarez then told him to get in on the other side and asked Aviles to drive.
The following took place on cross-examination by the prosecutor:
"Q So [J.E.] didn't want to get in the car, did he?
"A We reached an agreement. He came on his own from his room. We reached an agreement. He said he was going to get in, but was not going to drive, and then I said, 'Okay. Get in on the other side.'
"Q You said [J.E.] said 'No.'
"A Yes, first he said, 'No.' And I said, 'Why? If you're saying you have nothing to do with this, let's go talk to your dad.'
"Q . . . . [¶] After [J.E.] had seen you with a gun, that's when he got in the car, right?
"A Yes." (Boldface omitted.)
This ensued later during cross-examination:
"Q Did you threaten to shoot [J.E.]?
"A No.
"Q Did you threaten to break his legs?
"A Since he saw me with a gun, he said, 'Cuz, don't do anything to me.' And I said, 'I'm not going to do anything to you. Let's go talk to your dad. I don't want anything to happen,' or hit you, I did tell him that.
"Q You told him you'd hit him?
"A I told him I did not want to hit him, that we had to go talk to his father. I wanted to avoid all of that that I had been hearing the day before.
"Q So you told [J.E.], 'Let's go see your dad. I don't want to have to hit you'?
"A I said, 'Let's go talk to your father, because I have a video that you guys want to kill me, and I don't want anything to happen and have to go hit you.' I was telling him as in so as to defend my life.
"Q So 'hit him,' you meant you don't want to have to shoot him?
"A No. I told him that I didn't want anything to happen, like an accident. I told him, 'I don't want to have go [sic] and hit you.'
"Q So then he agreed to get in the car after that conversation?
"A Yes. He said, 'I just don't want to drive,' and I said, 'Okay. Get in through the other side,' and he said, [']Yes.'
"Q So you threatened [J.E.] to get in the car, by threatening to hit him? [¶] . . . [¶]
"THE WITNESS: Well, as I said, as I told you before, I told him, 'I don't want something to happen like me having hitting [sic] you.'
"[PROSECUTOR]: Q That's a threat, right?
"A I don't know how you can take it, but I did tell him that. I didn't want to hit him, that we can avoid that by talking to his dad.
"Q And when you're talking about hitting [J.E.], he had seen you with the gun?
"A Yes, he had already seen me.
"Q And this whole conversation took place in front of [Aviles]?
"A Yes. She was on the other side on the passenger's side." (Boldface omitted.)
As to count 2, the kidnapping charge, the trial court subsequently instructed the jury, in pertinent part: "To prove a defendant is guilty of this crime, the People must prove that, one, the defendant took, held or detained another person by using force or by instilling reasonable fear. Two, using that force or fear, the defendant moved the other person or made the other person move a substantial distance, and, three, the other person does not consent to that movement." The trial court did not instruct on reasonable and good faith mistake of fact as to consent. Alvarez now says the omission was reversible error; or, if we conclude the trial court had no sua sponte duty to so instruct, counsel was ineffective in failing to request the appropriate instruction. Aviles joins. We conclude defendants were not entitled to such an instruction, even upon request.
Defendants were convicted of violating section 207, subdivision (a). "[T]o prove this crime, the prosecution must generally 'prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance.' [Citation.]" (People v. Bell (2009) 179 Cal.App.4th 428, 435.) "[T]he force used against the victim 'need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.' [Citations.]" (People v. Majors (2004) 33 Cal.4th 321, 326-327.)
There is no kidnapping when a person who, knowing what is taking place, voluntarily consents to accompany another. (People v. Mayberry (1975) 15 Cal.3d 143, 153-154 (Mayberry).) Moreover, a person who committed an act under "an ignorance or mistake of fact, which disproves any criminal intent" is incapable of committing a crime. (§ 26, par. Three.) This is so because " '[w]hen a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them. [Citation.]' " (People v. Rivera (1984) 157 Cal.App.3d 736, 743.) Thus, a defendant who entertains "a reasonable and bona fide belief" that an individual voluntarily consented to movement "does not possess the wrongful intent that is a prerequisite . . . to a conviction of" kidnapping (Mayberry, supra, at p. 155), and an instruction regarding mistake of fact as to consent must be given in an appropriate case (id. at pp. 156-157).
These principles apply equally to someone tried as an aider and abettor. (See People v. Williams (2009) 176 Cal.App.4th 1521, 1528-1529.)
"In the absence of a request for a particular instruction, a trial court's obligation to instruct on a particular defense arises ' "only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' [Citations.]" (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.) Similarly, a trial court must give a requested instruction "only when the defense is supported by 'substantial evidence,' that is, evidence sufficient to 'deserve consideration by the jury,' not 'whenever any evidence is presented, no matter how weak.' " (People v. Williams (1992) 4 Cal.4th 354, 361.) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .' [Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.) On review, we independently determine whether substantial evidence to support a defense existed. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
"The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to [the movement]. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to [accompany him or her], that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citations.]" (People v. Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted; accord, People v. Maury, supra, 30 Cal.4th at p. 424.)
Our review of the record shows neither defendant was relying, at trial, on the defense of reasonable good faith belief in consent. Rather, the defense was that J.E. consented to accompany them, but merely refused to drive. "[A]lthough actual consent and Mayberry consent are compatible defenses and may be raised together, they are not inseparable. [Citations.] Thus, if the only evidence from the defendant is unequivocal consent and from the victim nonconsensual [movement], a sua sponte Mayberry instruction is not required. [Citations.]" (People v. May (1989) 213 Cal.App.3d 118, 125.)
In light of the foregoing, we must still determine whether the defense was supported by the evidence at trial. (People v. May, supra, 213 Cal.App.3d at p. 125.) We conclude it was not. Even assuming jurors might have credited Alvarez's testimony that he did not point the gun at J.E. or threaten to shoot him, Alvarez admitted J.E. agreed to get into the car only after Alvarez said he did not want to have to hit J.E. Alvarez further testified that J.E. had already seen Alvarez's gun by the time of this conversation. Regardless of Alvarez's subjective belief as to consent, no substantial evidence was adduced that such a mistaken belief was reasonable under the circumstances. Alvarez's own testimony established J.E. got into the car only as the result of a veiled threat; hence, any subjective belief Alvarez harbored as to consent was not objectively reasonable. Accordingly, the trial court had no sua sponte duty to give a Mayberry instruction. (See, e.g., Moye, supra, 47 Cal.4th at p. 541; People v. Maury, supra, 30 Cal.4th at pp. 424-425.)
The same is true with respect to Aviles. She did not testify at trial, so there is no direct evidence that she honestly and reasonably believed J.E. consented to accompany defendants. (See People v. Brooks, supra, 3 Cal.5th at p. 75.) While circumstantial evidence of consent can be sufficient to warrant an instruction (People v. Simmons (1989) 213 Cal.App.3d 573, 580), that evidence showed Alvarez initially had his gun on the seat of the car in which defendants were the only occupants. The only reasonable inference is that Aviles was aware of the gun's presence and knew it was in Alvarez's possession when he got out of the car to talk to J.E. Aviles speculates that because this conversation took place outside the car, she may not have heard what was said. But speculation is not substantial evidence and does not give rise to a duty to instruct on a defense. (People v. Crew (2003) 31 Cal.4th 822, 835.) Moreover, any suggestion Aviles did not hear what was going on and believed J.E. got into the car voluntarily is undercut by evidence she told J.E. that nothing was going to happen to him and that he was "neutral." Contrary to her claim this assurance demonstrated she believed he was in the car voluntarily, there was no reason for her to give this assurance unless she heard the conversation between J.E. and Alvarez. That Aviles could hear the conversation is also supported by the fact Alvarez was still outside the car with J.E. when (according to Alvarez's account) Alvarez asked Aviles to drive and she subsequently did so.
In light of the foregoing, the trial court had no sua sponte duty to instruct on mistake of fact as to consent, as to either defendant. Additionally, because a Mayberry defense was not supported by substantial evidence as to either defendant, neither would have been entitled to an instruction thereon, even upon request. (See People v. Williams, supra, 4 Cal.4th at p. 361.) It follows that neither defense attorney was ineffective in failing to make such a request.
IV
RESPONSE TO JURY QUESTION
As previously described, jurors were instructed, pursuant to CALCRIM No. 401, that in order to prove Aviles guilty of a crime based on aiding and abetting, "the People must prove that, . . . two, the defendant knew that the perpetrator intended to commit the crime . . . ." During deliberations, the jury submitted the following inquiry referencing that point with respect to aiding and abetting kidnapping: "Does the word 'knew' mean prior discussion & knowledge & discussion, or does it mean at the time — as in when [J.E.] actually got in car? [¶] How long would [Aviles] have to have known?"
The trial court met with all counsel to determine how to respond. Counsel for Aviles stated: "I think that the proper response would be something to the effect that you have received all of the evidence and the applicable law that applies in this particular case, including the ones on aiding and abetting. I think we're invading into their province if there is an instruction at this point that the court gives not part of the Cal.Crims that were given to them." The prosecutor asked the court simply to refer the jury back to CALCRIM No. 401. When the court stated its intention merely to quote the language in CALCRIM No. 200, there were no objections. The court stated: "Pursuant to instruction 200, 'Words and phrases not specifically defined in these instructions are to be applied using their ordinary everyday meaning,' and that's the note I'll be sending back to the jury."
Relying primarily on Rosemond v. United States (2014) 572 U.S. 65 (Rosemond) and Chiu, supra, 59 Cal.4th 155, Aviles now says the trial court failed to answer the question properly. She claims the court should have responded that "an aider and abettor must acquire foreknowledge of the crime at a time when there is a 'realistic opportunity to quit the crime,' and in determining whether such a realistic opportunity existed, the jury should consider whether it would be more dangerous to quit the crime than to proceed with it." She says defense counsel was ineffective for failing to request that response. We conclude she is not entitled to reversal.
"After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, . . . the information required must be given . . . ." (§ 1138.) This statute "imposes a 'mandatory' duty to clear up any instructional confusion expressed by the jury. [Citations.]" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
" 'When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.' [Citations.]" (People v. Boyce (2014) 59 Cal.4th 672, 699.)
Aviles contends the trial court's response here was not pertinent; hence, trial counsel's failure to object does not forfeit her challenge thereto. Forfeiture has been found, however, where, as here, "the court makes clear its intended response and defense counsel, with ample opportunity to object, fails to do so. [Citation.]" (Ross, supra, 155 Cal.App.4th at p. 1048; accord, e.g., People v. Rogers, supra, 39 Cal.4th at p. 877; People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; People v. Turner (2004) 34 Cal.4th 406, 437; People v. Medina (1990) 51 Cal.3d 870, 902, affd. sub nom. Medina v. California (1992) 505 U.S. 437.) In the present case, counsel for Aviles not only failed to object to the court's proposed response, he objected to the court going beyond the instructions the jury already had been given. Accordingly, the issue has not been preserved for appeal.
Nor can we say counsel was ineffective, whether in conceding to the jury that Aviles was involved in getting J.E. into the car but was attempting to "pour water on a situation, not gasoline" (cf. People v. Diggs (1986) 177 Cal.App.3d 958, 968-971), in failing to object to the court's response to the jury's question, or in failing to request a response based on the "entire crime" rule announced in Rosemond. "If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, "in assessing a Sixth Amendment attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice. [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
We are unable to say counsel could have had no reasonable tactical purpose here. We believe that, in arguing to the contrary, Aviles overstates the implications of the California Supreme Court's reliance, in Chiu, on the United States Supreme Court's holding in Rosemond.
It has long been the law in California that advance knowledge is not a prerequisite for liability as an aider and abettor. (People v. Swanson-Birabent, supra, 114 Cal.App.4th at p. 742.) Indeed, the California Supreme Court has stated: "It is settled that if a defendant's liability for an offense is predicated upon the theory that he or she aided and abetted the perpetrator, the defendant's intent to encourage or facilitate the actions of the perpetrator 'must be formed prior to or during "commission" of that offense.' [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1039; accord, People v. Cooper, supra, 53 Cal.3d at pp. 1164-1165 [getaway driver must form intent to facilitate or encourage commission of robbery before or during carrying away of loot to place of temporary safety].)
In Rosemond, supra, 572 U.S. 65, the United States Supreme Court examined the federal aiding and abetting statute and its application to a prosecution under section 924(c) of title 18 of the United States Code (hereafter § 924(c)), which "prohibits 'us[ing] or carr[ying]' a firearm 'during and in relation to any crime of violence or drug trafficking crime.' " (Rosemond, supra, at p. 67.) The court observed that the common law imposed aiding and abetting liability on a person who, with the requisite intent, facilitated any part of a criminal venture, even if that person did not facilitate every part thereof; and that this principle governed liability under the federal aiding and abetting statute. (Id. at p. 73.) Applying this to section 924(c), which requires the prosecution to show both use or carriage of a gun and the commission of a predicate (violent or drug trafficking) offense (Rosemond, supra, at p. 71), the high court concluded: "Rosemond . . . could assist in § 924(c)'s violation by facilitating either the drug transaction or the firearm use (or of course both). In helping to bring about one part of the offense (whether trafficking drugs or using a gun), he necessarily helped to complete the whole. And that ends the analysis as to his conduct. It is inconsequential, as courts applying both the common law and [the federal aiding and abetting statute] have held, that his acts did not advance each element of the offense; all that matters is that they facilitated one component." (Id. at p. 74.)
The court rejected Rosemond's argument that this approach would permit a conviction for abetting a section 924(c) violation whenever the prosecution showed the defendant abetted the underlying drug trafficking crime. (Rosemond, supra, 572 U.S. at p. 75.) The court explained: "[A]n aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime. [Citation.] And under that rule, a defendant may be convicted of abetting a § 924(c) violation only if his intent reaches beyond a simple drug sale, to an armed one. Aiding and abetting law's intent component . . . thus preserves the distinction between assisting the predicate drug trafficking crime and assisting the broader § 924(c) offense." (Id. at pp. 75-76.) The court further explained: "[A] person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense's commission. [Citation.] An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged — so here, to the full scope (predicate crime plus gun use) of § 924(c). [Citations.]" (Id. at p. 76, fn. omitted.)
The court observed that it had previously found this intent requirement satisfied "when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense." (Rosemond, supra, 572 U.S. at p. 77.) "An active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope — that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen . . . to align himself with the illegal scheme in its entirety — including its use of a firearm." (Id. at pp. 77-78.) The court concluded that for this to be true, "the § 924(c) defendant's knowledge of a firearm must be advance knowledge — or otherwise said, knowledge that enables him to make the relevant legal . . . choice. When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has 'foreknowledge that his confederate will commit the offense with a firearm.' [Citation.] For the reasons just given, we think that means knowledge at a time the accomplice can do something with it — most notably, opt to walk away." (Id. at p. 78, fn. omitted.)
In Chiu, supra, 59 Cal.4th 155, the California Supreme Court included a "cf." cite to Rosemond, and used similar language and reasoning, in the context of its determination an aider and abettor cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine. (Chiu, supra, at p. 167.) In making clear that aiders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles (id. at p. 166), the court stated: "Because the mental state component — consisting of intent and knowledge — extends to the entire crime, it preserves the distinction between assisting the predicate crime of second degree murder and assisting the greater offense of first degree premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder." (Id. at p. 167.)
Both Rosemond and Chiu dealt with what the Rosemond court termed a "double-barreled crime" (Rosemond, supra, 572 U.S. at p. 71) — Rosemond, because a conviction under section 924(c) requires proof not only of the commission of the predicate violent or drug trafficking offense, but also the use or carriage of a gun (Rosemond, supra, at p. 71), and Chiu, because a conviction of first degree premeditated murder requires proof not only of the commission of murder, but proof in addition of premeditation and deliberation (Chiu, supra, 59 Cal.4th at p. 167). Neither case stands for the proposition now espoused by Aviles — that in order to be liable as an aider and abettor, an accomplice must have advance knowledge of the crime in each and every instance. Rather, those cases in essence are applications of Beeman's mandate that "[w]hen the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime [citation], the aider and abettor must share the specific intent of the perpetrator. . . . [A]n aider and abettor will 'share' the perpetrator's specific intent 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." (Beeman, supra, 35 Cal.3d at p. 560, italics added.) In a crime such as kidnapping, as opposed to a dual-pronged offense such as premeditated murder or that proscribed by section 924(c), an individual can develop the intent to encourage or facilitate the crime — and can know the full extent of the perpetrator's criminal purpose — while the crime is in progress. Neither Rosemond nor Chiu says anything to cause us to doubt this proposition that is basic to the law of aiding and abetting in this state. Even assuming no advance knowledge or plan, once Aviles knew Alvarez was kidnapping J.E., her decision to assist him while the crime was still in progress made her liable for the kidnapping as an aider and abettor. The standard instructions on aiding and abetting covered this.
In light of the foregoing, we are unable to say defense counsel could have possessed no reasonable tactical purpose for his conduct. Accordingly, Aviles's claim of ineffective assistance of counsel fails.
V
PROSECUTORIAL MISCONDUCT
Jurors were instructed, prior to counsels' summations, that defendants were presumed to be innocent; this presumption required the People to prove them guilty beyond a reasonable doubt; and unless the evidence proved them guilty beyond a reasonable doubt, they were entitled to an acquittal and jurors must find them not guilty. At the commencement of his opening argument, the prosecutor stated: "As I told you in the opening statement, when this case started, the defendants went to the Vagabond Inn and executed Jose Villa, and now that you've seen the evidence, that's exactly what's happened. Now, the defendants are entitled to a trial by jury, no matter how guilty they are, even if the murder is on videotape, just like anybody else would be. But just because we're in a jury trial, it doesn't mean that there is some huge mystery to figure out. They've executed their right to trial. Their [sic] presumed innocent, but now that the evidence is all in, the evidence has overcome that presumption, and now, as they sit here, they are guilty." (Italics added.) Neither defendant objected.
Aviles now says the emphasized portion constituted prosecutorial misconduct of federal constitutional magnitude, as it misstated the presumption of innocence and misled jurors into believing the presumption only requires the prosecutor to produce evidence of guilt at trial, evaporates once such evidence has presented, and should play no role in deliberations. She acknowledges the lack of objection, but urges us to exercise our discretion to review the issue. If we decline to do so, she asserts trial counsel was ineffective for failing to object. Alvarez joins the claims. We conclude the prosecutor did not commit misconduct.
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such " 'unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.) "Because we consider the effect of the prosecutor's action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct. [Citation.]" (People v. Crew, supra, 31 Cal.4th at p. 839.)
"In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]' " (People v. Parson, supra, 44 Cal.4th at p. 359.) "When a claim of misconduct is based on the prosecutor's comments before the jury, ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' [Citation.]" (People v. Thompson, supra, 49 Cal.4th at p. 121.) In making this determination, we consider the remarks in the context of the whole argument and the instructions. (People v. Centeno (2014) 60 Cal.4th 659, 667.) "[W]e do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one." (People v. Howard (1992) 1 Cal.4th 1132, 1192.)
Defendants' claim was forfeited by their failure to object, at trial, to the prosecutor's remarks. (People v. Centeno, supra, 60 Cal.4th at p. 674; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1408.) "[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]." (People v. Marshall (1996) 13 Cal.4th 799, 831.) Nevertheless, "[a] prosecutor's misstatements of law are generally curable by an admonition from the court. . . . Nothing in this record indicates that an objection would have been futile. Nor was the prosecutor's argument so extreme or pervasive that a prompt objection and admonition would not have cured the harm." (People v. Centeno, supra, at p. 674, citations omitted.)
In any event, the claim fails on the merits. "A defendant is presumed innocent until proven guilty, and the government has the burden to prove guilt, beyond a reasonable doubt, as to each element of each charged offense. [Citations.]" (People v. Booker (2011) 51 Cal.4th 141, 185; see § 1096.) "That presumption continues to operate until overcome by proof of guilt beyond a reasonable doubt" (United States v. Fleischman (1950) 339 U.S. 349, 363), and remains with the defendant until the jury concludes, based on all the evidence and beyond a reasonable doubt, that he or she is guilty (People v. Arlington (1900) 131 Cal. 231, 235-236).
We find no reasonable likelihood jurors were misled by the prosecutor's remarks as defendants now claim. Rather, considered in the context of the argument as a whole and the instructions, jurors would have understood the prosecutor to be arguing that in his view, the evidence had proved defendants guilty beyond a reasonable doubt. There was no misconduct. (Compare People v. Booker, supra, 51 Cal.4th at pp. 183-184, 185-186 [presumption of innocence " 'doesn't stay' " not misconduct; prosecutor simply argued jury should return verdict in his favor based on state of evidence presented]; People v. Panah (2005) 35 Cal.4th 395, 463 [argument that prosecution's evidence had " 'stripped away' " presumption of innocence not misconduct; references were made in connection with prosecutor's general point that, in his view, evidence proved defendant's guilt beyond a reasonable doubt, i.e., evidence overcame presumption]; People v. Romo (2016) 248 Cal.App.4th 682, 690-691, 693 [argument that when jurors discussed evidence and evidence proved to them defendant's guilt beyond a reasonable doubt, presumption of innocence " 'goes away' " not misconduct; statements suggested presumption would be gone only after jury began deliberations and considered evidence of guilt, and were merely rhetorical statements about weight of evidence of guilt]; People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190 [not misconduct to argue that once evidence was complete and case had been proven to jurors beyond a reasonable doubt, which it had been, there was no more presumption of innocence, and defendant had been proven guilty by the evidence; "Once an otherwise properly instructed jury is told that the presumption of innocence obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt"] with People v. Cowan (2017) 8 Cal.App.5th 1152, 1154, 1159-1160 [misconduct to tell jurors presumption of innocence in place only when charges read and, once jury heard all evidence, presumption was gone]; People v. Dowdell, supra, 227 Cal.App.4th at pp. 1407-1408 [misconduct to tell jurors defendant received fair trial, evidence of guilt was overwhelming, and presumption of innocence was over]; U.S. v. Perlaza (9th Cir. 2006) 439 F.3d 1149, 1169-1170 [misconduct to tell jury presumption of innocence would vanish when jurors started deliberating and presumption of guilt would take over].)
As the prosecutor's remarks were proper, there was no reason for an objection; hence, the failure of defense counsel to object was not unreasonable. Accordingly, defendants' ineffective assistance claim fails. (People v. Thompson, supra, 49 Cal.4th at p. 121, fn. 14; People v. Salcido (2008) 44 Cal.4th 93, 171-172.)
VI
SENATE BILL NO. 620
In sentencing Alvarez, the trial court noted the three crimes of which defendants were convicted involved three separate victims and three separate acts of violence or the threat of violence. The court found the factors in aggravation "far outweigh[ed]" any factors in mitigation. As to count 1, it imposed a term of 25 years to life, enhanced by an additional term of 25 years to life pursuant to section 12022.53, subdivision (d). As to count 2, it imposed the aggravated term of eight years, enhanced by an additional term of 10 years pursuant to section 12022.53, subdivision (b), to run consecutively to the term imposed in count 1. As to count 3, it imposed the aggravated term of four years (to be served consecutively at the rate of one-third the middle term), enhanced by the aggravated term of 10 years pursuant to section 12022.5, subdivision (a) (to be served consecutively at the rate of one-third the middle term), to run consecutively to the terms imposed on counts 1 and 2. In short, the court imposed the maximum term possible.
In sentencing Aviles, the court found she posed a danger to her family and to the community. It found factors in aggravation and none in mitigation. As to count 1, it imposed a term of 25 years to life, enhanced by an additional year pursuant to section 12022, subdivision (a)(1). As to count 2, it imposed the aggravated term of eight years, enhanced by an additional year pursuant to section 12022, subdivision (a)(1). As to count 3, it imposed the aggravated term of four years (to be served consecutively at the rate of one-third the middle term). It ordered that all terms be served consecutively. As was the case with Alvarez, the court imposed the maximum term possible.
At the time defendants were charged, convicted, and sentenced, section 12022.53, subdivision (h) provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." Subdivision (c) of section 12022.5 contained virtually identical language. Thus, imposition of the firearm enhancements was mandatory as to Alvarez.
After defendants were sentenced, but while their appeals were still pending, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, § 2.) The amendments contained in this provision went into effect on January 1, 2018. Subdivision (h) of section 12022.53 now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." Subdivision (c) of section 12022.5 now contains identical language.
Alvarez's case was not yet final when the foregoing amendments went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) In light of this fact and the fact sections 12022.5, subdivision (c) and 12022.53, subdivision (h) now vest the trial court with authority to lower Alvarez's sentence, we conclude the amendments apply to his case, as the Attorney General concedes. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; see People v. Francis (1969) 71 Cal.2d 66, 75-76.)
Nevertheless, we conclude a remand would be a futile act, and therefore should not be ordered. As described, the trial court imposed the maximum possible sentence, even when it had discretion to impose less than the upper term. Under the circumstances, and in light of the trial court's comments about the aggravating and mitigating factors, we find it clear the trial court would not exercise its discretion to strike any of the section 12022.5 or section 12022.53 enhancements. (Compare People v. McVey (2018) 24 Cal.App.5th 405, 418-419 with People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081; People v. Chavez (2018) 22 Cal.App.5th 663, 713-714; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428; see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) No purpose would be served by remanding the matter.
Senate Bill No. 620 made no changes to section 12022, pursuant to subdivision (a)(1) of which Aviles's sentences on counts 1 and 2 were enhanced. Aviles contends she should also receive a remand, however, because (1) if Alvarez were to be successful in his effort to obtain resentencing, his sentence would be less than the one imposed on Aviles, and, since her liability was vicarious, it would be unfair not to afford her the same opportunity as Alvarez; and (2) although the trial court had discretion to strike Aviles's firearm enhancements and declined to do so, that determination should be reconsidered in light of the change in the " 'spirit' " of the law brought about by Senate Bill No. 620.
We decline to order a remand. The trial court possessed the discretion to strike the enhancements as to Aviles "in an unusual case where the interests of justice would best be served" (§ 12022, subd. (f)), and nothing in the record suggests it was unaware of that fact. Aviles points to nothing demonstrating hers could be found to constitute "an unusual case." Her fairness and equal protection arguments founder on the fact that Alvarez is not receiving a remand. Finally, even if we were to agree that in an appropriate case, a person whose sentence is enhanced pursuant to section 12022, subdivision (a)(1) should have the opportunity to have the court exercise its discretion in accordance with the spirit of the new law rather than the old one — despite the fact the Legislature made no change whatsoever to section 12022 (an argument as to which we express no opinion) — Aviles's would not be an appropriate case for the same reasons we have declined to order a remand in Alvarez's case.
VII
CLERICAL ERRORS IN ABSTRACTS OF JUDGMENT
As to each defendant, two separate abstracts of judgment were prepared, one for the determinate term and one for the indeterminate term. Both defendants say their abstracts contain clerical errors that must be corrected. The Attorney General does not oppose any of the requested corrections. We will order the corrections.
Both of Alvarez's amended abstracts list the wrong year for the year the crimes were committed. Although Alvarez does not request correction of those errors, or object to the financial obligations being listed on both the amended determinate and indeterminate abstracts, in light of the Attorney General's agreement such corrections can be made as to Aviles, we will also order them made as to Alvarez.
It appears some corrections were made after briefing was completed. Where the errors raised by a defendant have already been corrected and an amended abstract of judgment issued, we will not order the errors corrected again. Thus, the errors listed in defendants' briefs and addressed by the Attorney General may not comport, in all respects, with the errors identified in our disposition.
DISPOSITION
The judgments are affirmed as to both defendants.
As to Aviles, the trial court is directed to cause to be prepared a third amended determinate term abstract of judgment (form CR-290) that (1) shows "TOTAL TIME," in box 8, as "11 [years] 0 [months]"; and (2) deletes the monetary orders specified in box 9 and states instead that such orders are set out in box 9 on page two of form CR-292.
As to Alvarez, the trial court is directed to cause to be prepared a second amended determinate term abstract of judgment (form CR-290) that (1) shows the crimes in counts 2 and 3 both were committed in 2013; (2) lists the enhancement on count 2 as "PC 12022.53(b)"; (3) shows "TOTAL TIME," in box 8, as "22 [years] 4 [months]"; and (4) deletes the monetary orders specified in box 9 and states instead that such orders are set out in box 9 on page two of form CR-292. The trial court is further directed to cause to be prepared a second amended indeterminate term abstract of judgment (form CR-292) that shows the crime in count 1 was committed in 2013.
The court shall cause certified copies of all amended abstracts of judgment to be transmitted to the appropriate authorities.
/s/_________
DETJEN, J. I CONCUR: /s/_________
LEVY, Acting P.J. SMITH, J., Concurring and Dissenting.
In my view, Alvarez's case should be remanded for resentencing under Senate Bill No. 620 (Stats. 2017, ch. 682) because the record contains no "clear indication" that the sentencing court still would have imposed the firearm enhancements under Penal Code sections 12022.5 and 12022.53, even if it had known of its discretion to strike them. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. McDaniels (2018) 22 Cal.App.5th 420, 427; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) I cannot say with confidence that "[n]o purpose would be served by remanding the matter." (Maj. opn. ante, at p. 87.) We cannot appropriately find the court's error harmless and refuse a remand without some expression of the court's intent that would constitute a clear indication, even if the facts of the case and the severity of the sentence already selected render a more lenient sentence on remand unlikely. If the enhancements were stricken, Alvarez would be eligible for parole many years earlier, and "nothing in the record rules out the possibility that the court would exercise its discretion to strike the firearm enhancement[s]." (McDaniels, supra, 22 Cal.App.5th at p. 428, italics added.) I respectfully dissent from the majority's refusal to order a remand based on this issue. I concur in the remainder of the opinion and the balance of the judgment.
/s/_________
SMITH, J.