Opinion
D057174
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. DAYANA CORDOVA et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SWF023165)
APPEAL from a judgment of the Superior Court of Riverside, F. Paul Dickerson, III, Judge. Affirmed as modified.
Dayana Cordova and Anna Salinas appeal from convictions of first degree murder, carjacking, kidnapping, and child endangerment.
Cordova argues: (1) there was insufficient evidence to support her child endangerment and kidnapping convictions; (2) statements made by Salinas during a joint interview were improperly admitted as adoptive admissions by Cordova, and the jury was not fully instructed on use of this evidence; (3) the trial court erred in giving a pinpoint instruction on the intent required for guilt based on an aider and abettor theory; (4) the trial court erred in excluding third party culpability evidence; and (5) the prosecutor improperly appealed to passion and sympathy in closing arguments to the jury.
We agree with Cordova that the pinpoint instruction on the intent for aiding and abetting was incorrect. However, we conclude the error was harmless beyond a reasonable doubt. We also find no reversible error concerning her remaining contentions.
Salinas does not challenge her convictions, but raises only a sentencing error. She argues the sentence for child endangerment should have been stayed under Penal Code section 654 because the child endangerment involved the same objective as the kidnapping. We reject this assertion.
Subsequent unspecified statutory references are to the Penal Code.
Finally, Salinas and Cordova assert the trial court erroneously imposed restitution fines of $40,000 because the maximum permissible amount is $10,000 for each fine. The Attorney General agrees with this contention.
We affirm the judgments of conviction, and modify the judgments as to sentencing to reduce each fine to $10,000. As so modified, the judgments are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
At about 9:30 p.m. on October 18, 2007, Angelina Arias was shot in the head while she was sitting in her car. Arias was pushed out of the car and left lying on the road. The shooter (Salinas, age 15) and her friend (Cordova, age 16) left the scene in Arias's car, with Arias's one-year-old child still in the car. The next day Salinas was arrested after she was observed driving Arias's car. Cordova was arrested at her home.
In recorded interviews with the police, defendants admitted their involvement in the incident. Defendants told the police that they decided to carjack a car at gunpoint so they could drive to Los Angeles and go to an amusement park. With this plan in mind, Cordova took her father's gun and loaded it. Defendants went to a grocery store, where they approached a man in the parking lot and asked him for a ride. The man agreed and dropped them off at a park; they did not carry out the intended carjacking in this instance.
Several hours later, victim Arias saw defendants waiting outside near the restaurant where Arias worked, and offered them a ride. Defendants accepted the ride. Arias first drove with defendants to pick up her one-year-old daughter, and then drove to a location where Salinas stated they wanted to be dropped off. When the car was stopped, Salinas, sitting in the back seat, shot Arias twice, wounding her in the head and neck area. Defendants pushed Arias out of the car, left her lying on the street, and drove away with the child. Neighbors came out to the street where Arias was lying and called 911.
After the shooting, Salinas and Cordova drove the victim's child to a neighboring town, placed the child on a stranger's front porch, rang the door bell, and left. Patricia Guillermo, who lived there, was not home at the time, and she did not find the baby until several hours later. Guillermo's 12-year-old son was at home; he called his mother and told her that he heard the door bell ring and a baby crying. Guillermo told him maybe it was the neighborhood children. Guillermo did not tell her son to open the front door, and although there was a peephole in the door, there was no window that provided a view of the front area of her home. When Guillermo came home about four hours later, she found the child sitting in front of her door and she called the police.
Arias died from the gunshot wounds, and defendants were charged with murder.
Two juries were empanelled to hear the case against defendants. The juries heard the case together, except they were separated for some purposes, including hearing the recorded police interviews with defendants, instructions, and closing arguments. The police interviewed each defendant separately, and then interviewed them together. The Salinas interview was played for the Salinas jury; the Cordova interview was played for the Cordova jury; and the joint interview was played for both juries.
Because Salinas's appellate challenge concerns only sentencing, we focus our remaining factual presentation on the evidence and theories concerning Cordova. The prosecution's theory was that Cordova was liable as an aider and abettor because she assisted Salinas with the murder and other offenses. In defense, Cordova asserted that although she originally intended to commit a carjacking with Salinas, she abandoned this plan and did not know Salinas intended to carjack and kill Arias.
Cordova's Individual Statements to the Police
During her individual interview, Cordova told the police that she and Salinas decided to steal a car, drive it to the amusement park and back, and then abandon it. Cordova admitted that she had taken her father's gun from her house and loaded it with bullets. The plan was for Salinas to scare the people in the car with the gun, get the keys, and drive away.
Cordova stated she and Salinas were looking for a car that was "nice looking." While they were at a grocery store, they saw a man pull up in a nice car and go into the store. They decided to steal the man's car and to shoot him. When Cordova expressed concerns about shooting someone, Salinas told her that if they left the person alive the person would "rat [them] out." When the man came out of the store, Salinas asked him for a ride and he agreed. While they were in the car, Salinas handed her purse with the gun in it to Cordova, who was sitting in the back seat. Cordova did not shoot the man because she did not want to and she was afraid. The man dropped them off at a park and left. When Salinas stated Cordova was "not down" with their plan, Cordova responded she looked at the man and "just couldn't do it."
According to Cordova, they then spent several hours at the park and continued talking about how to get to the amusement park. Finally, Salinas got up, took the gun out of her purse and put it in her jacket pocket, and said she was tired of this and they should go get a car. They walked to a restaurant, where they saw a Chrysler parked outside. They decided to take that car. They waited for a while, but since no one came to the car, they thought it belonged to someone from the restaurant. They went inside the restaurant, where they used the restroom and ate. Cordova saw a woman who worked at the restaurant get in the Chrysler and then return to work; Cordova pointed out to Salinas that the Chrysler belonged to the woman. Salinas responded that this is "even better" because the woman did not look "that tough."
However, after having this conversation, Salinas's boyfriend called and said he could give them a ride. Because they could get a ride from the boyfriend, they changed their minds about stealing a car. They also decided not to go to the amusement park because it was too late. They went to a nearby market to wait for the boyfriend. While they were waiting, the woman from the restaurant passed by and asked them if they needed a ride; Salinas said yes and they got in the car. Cordova was in the front seat and Salinas was in the back seat. The woman said she needed to pick up her baby at a babysitter's home. While the woman was in the babysitter's home, Cordova asked Salinas what they were going to do because the woman had a child, and asked if they were going to have the woman drop them off at Cordova's home. Salinas responded that they would leave the child with the woman when they took the car, and that Cordova should "just go with what" Salinas was going to do.
When the woman was back in the car, Cordova told the woman she could drop them off at a corner, but Salinas directed her to go down a street and pull over to a dark area. Cordova said thank you to the woman and "bye baby" to the baby. When Cordova started to step out of the car, Salinas shot the woman twice. Salinas told Cordova to unbuckle the woman's seatbelt and Cordova complied. They pushed the woman out of the car and then left with the car and the baby.
Salinas was driving fast and Cordova was panicking. A man came out and was screaming at them, but Salinas kept driving. Salinas told Cordova to "shut up" and not panic. There was a man driving a Honda vehicle that passed by on the street; the man slowed down and saw what happened but did not stop.
Salinas and Cordova discussed what to do with the baby. Salinas suggested that Cordova take the baby with her, but Cordova said no. At Salinas's suggestion, they went to someone's home, where Salinas put the baby by the door and rang the doorbell. Before leaving, they waited until some "old ladies" came out and got the baby.
Cordova told Salinas she was too afraid to be in the victim's car to go to Los Angeles; Salinas should drop her off at her friend's home; and Salinas could do what she wanted with the car. Salinas wanted Cordova to keep the car and drop Salinas off at her boyfriend's home, but Cordova said no, she would not drive the car. Salinas took Cordova to the friend's home, and left in the car. Cordova told her friend that they had "jacked a car."
Cordova acknowledged that they had a plan to use the gun to scare the woman, snatch her keys, and leave in the car, but stated there was no plan to kill her. Cordova claimed that Salinas never stated she was going to shoot someone, and she did not know Salinas wanted to kill the woman. When she was in the victim's car, Cordova did not know if Salinas was going to "jack her purse" or "beat her up" so they could get the car. Cordova thought Salinas was going to point the gun at the woman, but not shoot her, and tell the woman to get her baby and get out of the car.
Joint Interview with Cordova and Salinas
During the joint interview, the police investigator asked defendants various questions to clear up discrepancies in their individual statements to the police. Cordova acknowledged that several items of information provided by Salinas were true. These included statements that after Cordova got the gun she test fired it outside; after the attempted carjacking at the grocery store Cordova asked Salinas why she had opened her car door because it would have made the gunshot too loud; when they were in the victim's car and the woman was talking on the phone, Cordova asked Salinas if she was going to "do it"; and when the woman was in the babysitter's home she and Salinas discussed driving up a street and shooting the woman when she stopped the car. When asked whether she told Salinas to shoot the woman, Cordova first answered she could not remember, and when questioned again, responded "[p]robably, probably not." When the police investigator stated that they "both had a plan" and "the plan happened," both defendants said yes.
Concerning the baby, Cordova stated they rang the doorbell and waited until they saw someone open the door. Salinas clarified: "I heard somebody coming down and I ran . . . to the car and we left. [¶] . . . [¶] It was like barely somebody was coming out but barely. But I didn't see . . . the actual person and we ran to the car door."
At first Cordova stated they waited "until the lady come out," but then modified her answer when Salinas described her version of what happened.
When Salinas and Cordova were alone in the interview room, Salinas made various comments about the shooting, including that they killed someone and if only she had not done this. At another point, Cordova commented, "We did it. Now we have to suffer the consequences. [¶] . . . [¶] . . . Our stupid ass idea about killing people fool. [¶] . . . [¶] It's 'cause she wanted to die anyways. Nobody told her fucken ass to give us a ride. We were already going home fool."
Jury Verdict and Sentence
For both defendants, the jury was instructed on several theories of first degree murder, i.e., premeditated murder, lying-in-wait murder, and felony murder (based on carjacking). With respect to Cordova, the jury was instructed on aiding and abetting principles.
The jury convicted Salinas and Cordova of first degree murder, carjacking, kidnapping of the child, and child endangerment. For Salinas, the jury found true an allegation that she personally discharged a firearm causing death. For Cordova, the jury found true an allegation that a principal was armed with a firearm, and a special circumstance allegation for felony murder which allows for a sentence of life without the possibility of parole. (§ 190.2, subd. (a)(17)(L).)
To apply this special circumstance to Cordova (who was not the actual killer), the jury was instructed that the prosecution must prove (1) Cordova aided and abetted a carjacking during which Salinas caused the victim's death, and (2) Cordova intended to kill, or was a major participant in the crime and acted with reckless indifference to life. (§ 190.2, subds. (a)(17), (d).)
This special circumstance allegation did not apply to Salinas because, at age 15, she did not meet the applicable age requirement. (§ 190.5, subd. (b).)
Salinas was sentenced to a total indeterminate term of 50 years to life and a total determinate term of nine years four months, consisting of: 25 years to life for first degree murder; 25 years to life for the personal gun discharge finding for the murder; eight years for kidnapping; and one year four months for child endangerment. Cordova was sentenced to life without the possibility of parole for first degree murder based on the special circumstance finding applicable to felony murder, plus a determinate term of eight years for kidnapping and one year four months for child endangerment. For both defendants the sentence on the carjacking conviction was stayed under section 654.
I. CORDOVA'S APPEAL
A. Sufficiency of the Evidence
Cordova argues there is insufficient evidence to support her convictions of child endangerment and kidnapping.
In reviewing a challenge to the sufficiency of the evidence, we examine the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) It is the exclusive province of the jury to determine credibility and to resolve evidentiary conflicts and inconsistencies. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
1. Sufficiency of the Evidence for Child Endangerment
The offense of child endangerment is committed when a person having the care and custody of a child willfully causes or permits the child to be placed in a situation likely to produce great bodily harm or death. (§ 273a, subd. (a); People v. Toney (1999) 76 Cal.App.4th 618, 621-622.) The element of care and custody means " 'a willingness to assume duties correspondent to the role of a caregiver.' " (People v. Toney, supra, 76 Cal.App.4th at p. 622.) The element of willfully causing a situation likely to cause great bodily injury or death is satisfied upon a showing of criminal negligence—i.e., a reckless or gross departure from the ordinary standard of due care that is incompatible with a proper regard for human life. (People v. Valdez (2002) 27 Cal.4th 778, 781, 784-785; People v. Toney, supra, 76 Cal.App.4th at p. 622.) The likelihood of great bodily injury or death is shown when the defendant creates a substantial danger; i.e., a serious and well-founded risk of great bodily harm or death. (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.)
The prosecutor argued that defendants committed child endangerment by leaving the victim's child on a doorstep late at night. Cordova argues there is insufficient evidence to support her child endangerment conviction because the child was not in defendants' care and custody, and defendants did not act recklessly when they placed her on the porch. These contentions are unavailing.
The jury could reasonably conclude that when defendants killed the victim and drove away with the victim's small child in the car, defendants assumed the role of caregiver for the child because they had, of their own accord, removed the only other caregiver then with the child. (See People v. Morales (2008) 168 Cal.App.4th 1075, 1083-1084 [jury could find that defendant who drove with child in car had care and custody even absent evidence that child was relative who lived with him or had driven with him in the past].)
Further, the jury could reasonably find that defendants' conduct of leaving a young child on a front doorstep late at night constituted a gross departure from due care and created a substantial danger of great bodily harm to the child. The resident of the home (Guillermo) did not find the child until about four hours after she was left there. Based on Guillermo's testimony that her son reported hearing the doorbell and a baby crying (with no report of seeing anyone there), the jury could conclude that the son never opened the door, and hence Cordova's claim that defendants waited until someone opened the door was untrue. Further, even under Cordova's version of the incident, defendants did not wait for someone to actually take the child inside the home. A one-year-old child left unattended on a porch in the dark could be harmed in a multitude of ways.
Based on the evidence showing that defendants had the child under their sole control after shooting the child's mother and that defendants did not wait to see the child taken inside the home to a place of relative safety, the jury could reasonably find that defendants committed the offense of child endangerment.
2. Sufficiency of the Evidence for Kidnapping
When a kidnapping involves a child as the victim, the offense is committed when the defendant moves the child a substantial distance with an illegal purpose or with an illegal intent. (In re Michele D. (2002) 29 Cal.4th 600, 610.) Cordova argues the kidnapping conviction is not supported because the evidence showed defendants' purpose was to take the child to a place where she could be taken care of. Assuming defendants had this purpose, the jury could reasonably infer they also moved the child for illegal purposes. Defendants wanted to steal a car, and after shooting the child's mother they drove the child in the car away from the scene of the shooting. These facts support a finding that defendants transported the child for the illegal purposes of committing a carjacking and escaping from the authorities after committing the murder. (See People v. Duran (2001) 88 Cal.App.4th 1371, 1378-1379 [kidnapping a child does not require that illegal purpose be directed at child].) There was substantial evidence to support the kidnapping conviction.
B. Admission of Salinas's Statements as Adoptive Admissions
During pretrial motions, Cordova's counsel moved to exclude the statements made by Salinas during the joint police interview based on Cordova's rights under Crawford and Aranda-Bruton to confront a witness against her. Cordova's counsel argued that Salinas's accusatory statements to Cordova did not qualify as adoptive admissions because Cordova's responses were too equivocal to reflect her agreement with Salinas's statements. The trial court denied the motion, stating Cordova's equivocal statements could be adoptive admissions and this was a question of fact for the jury.
Crawford v. Washington (2004) 541 U.S. 36.
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.
On appeal, Cordova asserts the trial court erred in concluding Salinas's statements during the joint interview qualified as adoptive admissions, and admission of the statements violated her constitutional right to confront witnesses.
The jury may consider whether a person has made an adoptive admission if the person is directly or indirectly accused of having committed a crime, and the person fails to deny the accusation or responds evasively or equivocally, under circumstances where an innocent person would be expected to respond with a prompt denial. (Evid. Code, § 1221; People v. Riel (2000) 22 Cal.4th 1153, 1189; People v. Simmons (1946) 28 Cal.2d 699, 712.) If there is evidence that supports a reasonable inference that an accusatory statement was made under circumstances affording an opportunity to deny the accusation, the trial court should submit the issue to the jury to decide whether the defendant's conduct actually constituted an adoptive admission. (People v. Riel, supra, at pp. 1189-1190.) Adoptive admissions can be admitted into evidence without violating Crawford or Aranda-Bruton rights because once the defendant has expressly or impliedly adopted the statements of another, the defendant is in effect the declarant and there has been no denial of the right to confront an adverse witness. (People v. Jennings (2010) 50 Cal.4th 616, 661-662.)
Cordova contends that Salinas's statements during the joint interview did not qualify as adoptive admissions because Salinas spoke to her in an accusatorial, confrontational fashion. This contention ignores the premise of adoptive admissions — i.e., statements may be deemed adoptive admissions precisely because they are accusatorial and an innocent person would be expected to deny them.
Cordova also argues that she did not adopt some of Salinas's statements during the joint interview, and hence the statements should not have been admitted as adoptive admissions. Cordova cites a portion of the joint interview where Salinas told the police investigator that while they were in the car, Cordova stated, "[A]re you down? You need to shoot her . . . ." When the investigator questioned Cordova about whether she said this, Cordova answered that she could not remember, but when asked again if it was possible she might have said that, Cordova answered "[p]robably, probably not." Given the equivocal nature of Cordova's response, the jury was entitled to consider whether she made an adoptive admission on this point. Cordova has not specified any other statements that in her view do not qualify as adoptive admissions.
Cordova further asserts the trial court erred (and her counsel was ineffective) because the jury was not instructed in the language of a portion of CALJIC No. 2.71.5, stating: "Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the . . . conduct of the accused in the face of it." CALJIC No. 2.71.5, including the portion just quoted, sets forth an instruction on adoptive admissions which in effect tells the jury not to consider an accusatory statement for its truth unless the jury first finds the defendant's response to the statement reflects that the defendant has adopted the statement as his or her own. Here, the jury was informed of this concept in the language of CALCRIM No. 357, which sets forth the requirement that the defendant would have denied the statement if she thought it was not true, and told the jury that "[i]f you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose." (Italics added.) CALCRIM No. 357, which told the jury not to consider the statement for any purpose unless it was an adoptive admission, provided the jury with the same information as set forth in CALJIC No. 2.71.5.
CALJIC No. 2.71.5 states: "If you should find from the evidence that there was an occasion when the defendant (1) under conditions which reasonably afforded her an opportunity to reply; (2) failed to make a denial or made false, evasive or contradictory statements, in the face of an accusation, expressed directly to her or in her presence, charging her with the crime for which this defendant now is on trial or tending to connect her with its commission; and (3) that she heard the accusation and understood its nature, then the circumstance of her silence and conduct on that occasion may be considered against her as indicating an admission that the accusation was true. Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and conduct of the accused in the face of it. Unless you find that the defendant's silence and conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement." (Some material in brackets and brackets omitted.)
The trial court properly admitted the evidence for consideration as adoptive admissions, and there was no error in the failure to instruct in the language of CALJIC No. 2.71.5.
C. Pinpoint Instruction on Intent for Aider and Abettor Culpability
Cordova argues the trial court gave an improper pinpoint instruction on the intent needed to find her guilty as an aider and abettor. As we shall explain, we conclude the pinpoint instruction should not have been given because it does not apply to cases, as here, where an aider and abettor is charged with an intended target offense, but is not charged with an unintended offense under the natural and probable consequences doctrine. Further, the instruction erroneously suggests that the prosecution need not prove that the aider and abettor had the intent required for the target offense. However, we conclude the error was harmless beyond a reasonable doubt.
1. Background
The jury was given a standard instruction on aiding and abetting, which informed the jury that the defendant must know the perpetrator intended to commit the crime, and must have intended to aid and abet the perpetrator in committing the crime. (See CALCRIM No. 401.) Further, the instruction stated a defendant aids and abets if the defendant knows of the perpetrator's unlawful purpose and specifically intends to, and does, facilitate or encourage the perpetrator's commission of the crime. (Ibid.)
At the prosecutor's request, the jury was also provided a pinpoint instruction addressing the aider and abettor's intent, which stated: "The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as an actual perpetrator. The actual perpetrator must have whatever mental state is required for each crime charged. An aider and abettor, on the other hand, must 'act with knowledge of [the] criminal purpose of the perpetrator and with an intent or purpose either of committing, or encouraging or facilitating commission of the offense.' The jury must find 'the intent to encourage and bring about conduct that is criminal' not the specific intent that is an element of the target offense." (Italics added.)
During the discussions on jury instructions, the prosecutor stated that he formulated the pinpoint instruction based on language in a California Supreme Court case which indicated that an aider and abettor did not need to have the specific intent required for the offense (i.e., intent to kill for premeditated first degree murder), but only the intent to help the perpetrator commit the offense. Cordova objected, arguing that when an aider and abettor is charged with the offense the aider and abettor intended to happen (the target offense), the aider and abettor must share the intent required for the target offense, including intent to kill for premeditated first degree murder. Cordova contended the language in the case cited by the prosecutor concerned culpability under the natural and probable consequences doctrine, which was not at issue in her case.
The trial court concluded the requested pinpoint instruction was appropriate because case authority indicated the aider and abettor did not need to have the intent for the target offense. In closing arguments to the jury, the prosecutor, over defense objection, argued that to convict Cordova as an aider and abettor of premeditated first degree murder it was not necessary for the jury to find that she had the intent to kill.
The prosecutor argued: "What is an aider and abettor? . . . Ms. Cordova aided and abetted the murder if Ms. Salinas committed a murder, Ms. Cordova knew that Salinas intended to commit that murder, and Ms. Cordova intentionally aided, facilitated, promoted, encouraged or instigated the murder. She is an aider and abettor to murder if she knew it was going to happen and she intentionally encouraged it. [¶] What is not required? What's not required is that Ms. Cordova actually harbor the intent to kill, herself, okay? If Ms. Salinas wanted Angelina Arias to die, and she had the intent to kill, and Ms. Cordova didn't, Ms. Cordova said, 'Hey, look, . . . I'd rather she not,' or 'It doesn't matter to me if she dies or not, but if you want to kill her, I'm going to help you do it,' she is an aider and abettor even though she's completely indifferent, or opposed to the idea of her dying."
2. Aiding and Abetting Principles
To be culpable as an aider and abettor, the defendant must have 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." (People v. Beeman (1984) 35 Cal.3d 547, 560, italics omitted.) Thus, aider and abettor culpability is imposed when the defendant shared the perpetrator's criminal purpose. (Ibid.) The aider and abettor is liable for (1) the offense committed by the perpetrator that was intended by the aider and abettor (the target offense), and (2) other offenses committed by the perpetrator that were not intended by the aider and abettor but that were the natural and probable consequence of the intended offense. (People v. Prettyman (1996) 14 Cal.4th 248, 260-261; People v. McCoy (2001) 25 Cal.4th 1111, 1117.) With respect to the target offense intended by the aider and abettor, the aider and abettor's mens rea (like the perpetrator's mens rea) is the intent associated with the target offense. (People v. McCoy, supra, 25 Cal.4th at p. 1118 & fn. 1.) In contrast, with respect to a nontarget offense unintended by the aider and abettor, the aider and abettor (unlike the perpetrator) need not have the mens rea required for the offense, but need only have the overarching "intent to encourage and bring about conduct that is criminal . . . ." (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; People v. Mendoza (1998) 18 Cal.4th 1118, 1122-1123.)
When an aider and abettor is charged with an unintended offense under the natural and probable consequences doctrine, the courts have recognized that the "mental state necessary for conviction as an aider and abettor . . . is different from the mental state necessary for conviction as the actual perpetrator." (People v. Mendoza, supra, 18 Cal.4th at pp. 1122-1123; People v. McCoy, supra, 25 Cal.4th at p. 1117.) However, this principle does not alter the requirement that to impose culpability for the target offense, the aider and abettor must entertain the intent required for the target offense. (People v. Torres (1990) 224 Cal.App.3d 763, 770.) The courts have repeatedly recognized the common intent of the perpetrator and aider and abettor in the context of culpability for the target offense. (See, e.g., People v. Durham (1969) 70 Cal.2d 171, 181 [the aider and abettor " 'must share the criminal intent with which the crime was committed' "]; People v. Prettyman, supra, 14 Cal.4th at p. 259 ["When the offense charged is a specific intent crime, the accomplice must 'share the specific intent of the perpetrator' "]; People v. McCoy, supra, 25 Cal.4th at p. 1118, fn. 1 ["when guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrator's intent"]; accord People v. Lee (2003) 31 Cal.4th 613, 624; People v. Beeman, supra, 35 Cal.3d at p. 560.)
The courts also recognize that in some circumstances the aider and abettor may ultimately be guilty of a target offense that is greater or lesser than the offense imposed on the perpetrator, depending on the particular states of mind of the aider and abettor and the perpetrator and the availability of defenses to a particular crime. (See People v. McCoy, supra, 25 Cal.4th at pp. 1114, 1118-1122; People v. Nero (2010) 181 Cal.App.4th 504, 507, 513; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164.) In any event, the aider and abettor cannot be convicted of a target offense without a finding that the aider and abettor had the intent required for that offense. (People v. McCoy, supra, 25 Cal.4th at p. 1118 & fn. 1.)
In the context of aider and abettor liability for murder or attempted murder, the courts have explicitly stated that, outside of the natural and probable consequences doctrine, the aider and abettor must have the intent to kill. For example, in People v. McCoy, supra, 25 Cal.4th 1111, the California Supreme Court stated: "[W]hen the charged offense and the intended offense—murder or attempted murder—are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, . . . the aider and abettor must know and share the murderous intent of the actual perpetrator." (Id. at p. 1118, italics added.) Likewise, in People v. Lee, supra, 31 Cal.4th 613, our high court noted: "[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill." (Id. at p. 624, italics added.)
3. Analysis
a. The Pinpoint Instruction Was Erroneous
Here, Cordova's alleged guilt as an aider and abettor of murder and other offenses was based on these offenses as intended, target offenses. There were no arguments or instructions based on unintended offenses that were natural and probable consequences of intended offenses. Because the pinpoint instruction was applicable to aider and abettor liability premised on the natural and probable consequences doctrine, it was irrelevant and misleading. Instead of informing the jury that Cordova had to share Salinas's intent as to the charged target offenses, it erroneously stated that the required mental states for the aider and abettor and the perpetrator were different, and that only the perpetrator needed to have the mental state associated with the charged offense.
Further, in People v. McCoy, supra, 25 Cal.4th 1111, the California Supreme Court expressly disapproved the language in the pinpoint instruction stating that for aider and abettor liability the jury need not find " 'the specific intent that is an element of the target offense.' " (Id. at p. 1118, fn. 1, italics added.) The McCoy court explained that this particular statement (set forth in People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5) was inaccurate and misleading, and reaffirmed the principle that when the charged crime is an intended target crime, the aider and abettor must share the intent required for the target offense. (McCoy, supra, at p. 1118, fn. 1.)
McCoy states: "Our discussion in People v. Croy, supra, 41 Cal.3d at page 12, footnote 5, contained language that has caused some confusion: 'It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury.' This statement was part of a discussion of liability for an unintended crime under the natural and probable consequences doctrine. Our reference to 'target offense' should more accurately have been to the charged crime. When the charged crime and the intended crime are the same; i.e., when guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrator's intent." (McCoy, supra, 25 Cal.4th at p. 1118, fn. 1.)
Because this case did not involve the natural and probable consequences doctrine and because the pinpoint instruction erroneously suggested the aider and abettor need not have the intent required for the target offense, the trial court erred in providing the jury with the pinpoint instruction. Further, the prosecutor erred in arguing to the jury that Cordova did not need to personally have the intent to kill to be guilty of premeditated first degree murder. b. No Prejudice
However, we conclude the error was harmless beyond a reasonable doubt. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) To the extent the jury was misinformed concerning the intent to kill element for premeditated murder, this theory of murder is not essential to sustain Cordova's murder conviction because the jury's verdict reflects that it concluded she committed felony murder, which does not require intent to kill. (People v. Hart (1999) 20 Cal.4th 546, 608 [intent to kill is not an element of felony murder].) Although the jury's verdict forms did not require it to select which theory of first degree murder it was relying upon, the jury's true finding on the special circumstance allegation for felony murder includes a finding that the murder occurred during the carjacking, thus showing the jury found Cordova committed felony murder. (See fn. 3, ante.) Given the finding of felony murder, Cordova's murder conviction is sustainable regardless of any impact of the error on the premeditated theory of murder.
Moreover, even if we evaluate the error with respect to the premeditated theory of murder, there was no prejudice. Based on CALCRIM No. 401, the jury was instructed that to be guilty as an aider and abettor, the defendant must know of the perpetrator's unlawful purpose; must know the perpetrator intended to commit the crime; and must have intended to encourage or facilitate commission of the crime. This formulation of the required intent was reiterated in the first portion of the pinpoint instruction; i.e., the aider and abettor must know of the perpetrator's criminal purpose and intend to encourage or facilitate commission of the offense. Consistent with these instructions, during closing arguments both the prosecutor and Cordova's counsel repeatedly discussed whether Cordova knew about Salinas's intent to murder and intended to help with the murder.
The prosecutor argued to the jury: "What evidence is there that [Cordova] knew the murder was going to happen and that she intentionally encouraged it?" Cordova's counsel argued: "But whatever theory the prosecution puts in front of you, it is important to remember that they all require two things: Knowledge and intent. Knowledge and intent. [¶] . . . [¶] The issue in this case is knowledge and intent, for Ms. Cordova's knowledge of Anna Salinas' plan, if she had one in advance, to car jack and kill Angelina Arias. And in this case there's been no evidence that Ms. Cordova intended to kill Ms. Arias. There's been no evidence that Ms. Cordova has malice, or had malice aforethought. No evidence that she, Ms. Cordova, intended to hurt anyone. No evidence that she knew that [Salinas] intended to kill Ms. Arias." In rebuttal, the prosecutor argued: "[Cordova's counsel] said there's no evidence of intent to kill on the part of Ms. Cordova, no evidence that she knew Ms. Salinas was going to kill Ms. Arias, and no evidence that she helped . . . . [¶] . . . [¶] . . . I see an entirely different picture than that. . . . [¶] . . . [¶] When we talk about whether or not she knew the murder was going to happen, and that she intentionally helped commit the murder, we talked about several different things. And again, [Cordova's counsel] told us that she didn't know the murder was going to happen, and that she didn't tell her to do it. [¶] . . . [¶] . . . As an aider and abettor, she actually had to know that the murder was going to take place and actually intended to help her with the murder. And we have both of those, without a doubt."
Considering the instructions in conjunction with counsels' closing arguments, the jury was not asked merely to consider whether Cordova intended to help Salinas use the gun (which could evince an intent lesser than intent to kill), but also whether Cordova intended to help Salinas commit a murder. Once the jury found Cordova knew about and intended to help with a murder, the conclusion was virtually inescapable that she premeditated and shared Salinas's intent to kill. That is, when a defendant knows that a perpetrator intends to commit murder and decides to help the perpetrator commit that particular offense, these circumstances create a compelling inference that the defendant wanted the death to occur and engaged in the reflective process required for premeditated murder. (See People v. Lee, supra, 31 Cal.4th at p. 624.)
Viewing the instructions and closing argument as a whole, the record shows the incorrect statements that the jury need not find the intent required for the target crime (including intent to kill for premeditated murder) were brief and were overshadowed by the repeated statements that the jury needed to find Cordova knew about Salinas's intent to murder and intended to help commit the murder. We conclude the error was harmless beyond a reasonable doubt with respect to the offense of premeditated murder.
The instructional error was also harmless as to the murder conviction based on a felony-murder/carjacking theory and the carjacking conviction itself. The felony-murder theory of murder required only a finding of intent to commit a carjacking. (See People v. Hart, supra, 20 Cal.4th at p. 608.) Carjacking requires the taking of a vehicle from a person against the person's will by force or fear and the intent to deprive the person of temporary or permanent possession of the vehicle. (People v. O'Neil (1997) 56 Cal.App.4th 1126, 1131.) Accordingly, to be guilty of carjacking on an aiding and abetting theory, Cordova must have intended that Salinas take the car by force and keep it for a period of time. The jury was instructed that to be guilty as an aider and abettor, the defendant must have known of the perpetrator's unlawful purpose and intended to encourage or facilitate commission of the crime. Unlike the offense of premeditated murder, the prosecutor did not argue that Cordova did not need the intent required for carjacking. We have no doubt the jury understood that if Cordova did not intend that Salinas forcefully take and keep the car, Cordova was not guilty of felony murder or carjacking. Accordingly, to the extent the instructional error suggested the jury could impose aiding and abetting culpability for felony murder and carjacking without evaluating whether Cordova had the intent required for carjacking, the error was harmless beyond a reasonable doubt.
Cordova does not argue the instructional error affected the lying-in-wait theory of murder, nor the offenses of kidnapping or child endangerment. In any event, for the same reasons stated above, the error was harmless.
D. Exclusion of Third Party Culpability Evidence
Cordova argues the trial court erred in excluding evidence of third party culpability. The defense proffered that the shooting and carjacking could have been committed by (1) Salinas's boyfriend (Antonio Jauregui) who admitted to the police that his fingerprints would be on the victim's car, and/or (2) a person in a Honda vehicle observed on the street at the time of the shooting.
Because Salinas—without joinder by Cordova—argued in opposition to exclusion of the third party culpability evidence, the Attorney General argues Cordova has forfeited the issue on appeal. Based on our holding below finding no error in the trial court's exclusion of the evidence, we need not address the forfeiture issue.
The prosecutor argued the evidence concerning the boyfriend and the person in the Honda should be excluded, asserting there was no evidence linking these third parties to the crimes. The prosecutor noted that during the police interviews with defendants, Salinas admitted committing the shooting; Cordova at first blamed Salinas and then admitted involvement; and neither defendant implicated anyone else. The prosecutor also explained that Jauregui denied any involvement; he fully cooperated with the authorities during the investigation; and there was nothing tying him to the Honda or to the scene of the shooting. When questioned about the night of the shooting, Jauregui told the police that Salinas had called asking for a ride but later called and said she no longer needed a ride; he then went to look for Salinas at Cordova's home (where Salinas was living at the time); Salinas (accompanied by Cordova and a baby) drove up in the victim's car; and at Salinas's request he followed them to Perris where Salinas had to drop off the baby, but (recognizing that Salinas was not going to "hang out" with him) he went home. Concerning the Honda, the prosecutor stated that eyewitnesses saw the Honda stop near the victim's vehicle as the victim's vehicle was being driven away after the shooting; the eyewitnesses did not observe any interaction between the Honda occupants and the persons in the victim's vehicle; and the Honda occupants told an eyewitness they had nothing to do with what occurred and left the scene.
Defense counsel contended evidence concerning Salinas's boyfriend should be admitted because he was originally considered a suspect by the police; at first he lied to the police; his fingerprints were on the victim's car; an eyewitness saw Hispanic males (one of whom could have been the boyfriend) in the Honda; and the defendants may have been intimidated when they were interviewed by the police. Concerning the Honda, defense counsel argued that an eyewitness should be permitted to testify that he saw the Honda parked by the victim's car down the street after the shooting; there was some communication between the two vehicles; and there was at least one Hispanic male in the Honda. Defense counsel asserted the testimony was relevant to show that a third party committed the shooting in the victim's car and then entered the Honda, and that Salinas might testify that this is what occurred.
The trial court excluded the third party culpability evidence, concluding that the fact another car was driving on the street did not alone tie it to the shooting. With respect to Salinas's boyfriend, the court noted there was no indication during the police interviews with defendants that Salinas's boyfriend was involved in the crimes, and the evidence showed that the boyfriend's contact with the victim's car occurred after the shooting. However, the court stated that if Salinas testified that a third party committed the shooting, it would allow evidence concerning third party culpability.
A defendant has a right to present evidence of third party culpability where the evidence is capable of raising a reasonable doubt of the defendant's guilt. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1136.) However, this does not mean that any evidence, however remote, must be admitted. (Ibid.) " '[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.' " (Ibid., brackets in original.) On appeal, we review the trial court's ruling under the abuse of discretion standard. (People v. Brady (2010) 50 Cal.4th 547, 558.)
The trial court could properly conclude there was no evidence linking the persons in the Honda or Salinas's boyfriend to the crimes. The defense did not present testimony from Salinas; thus, she did not provide evidence of third party culpability. During the recorded interviews with the police after their arrests, defendants described their versions of what occurred and made no statements suggesting any involvement of persons in the Honda or of Salinas's boyfriend. Given the recorded statements by Cordova and Salinas reflecting no third party involvement, the trial court reasonably concluded that the presence of the Honda on the street and the fact Salinas's boyfriend had contact with the victim's car were insufficient to tie a third party to the offenses. The trial court did not err in excluding third party culpability evidence.
Although defendants made several references to Salinas's boyfriend ("Tony") during their recorded statements, they did not suggest his involvement in the offenses.
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E. Prosecutor's Closing Argument
Cordova argues the prosecutor improperly appealed to passion and sympathy in closing arguments to the jury and that a mistrial should have been granted.
Cordova cites a portion of the argument where the prosecutor commented that Cordova was near the victim at the time of the shooting and must have seen "the blood spill, the convulsions, the suffering." Further, she cites the prosecutor's statements that the jurors could see the difference "between a good person and a bad one" if they looked at the compassion and caring demonstrated by the neighbor who found the victim in the street, and compared it to Cordova's lack of remorse and her indifference to life (as reflected in her laughter during the recorded interview and her statement that the victim deserved to die).
A prosecutor's improper remarks violate the federal Constitution if they comprise a pattern of conduct so egregious that they render the trial fundamentally unfair, and violate state law if they involve deceptive or reprehensible methods to persuade the court or jury. (People v. Hill (1998) 17 Cal.4th 800, 819.) A prosecutor is given wide latitude to vigorously argue the case, may make remarks based on the evidence and inferences drawn from the record, and may use appropriate epithets. (Ibid.) The use of derogatory epithets to describe a defendant, when founded on the evidence, may be within the permissible bounds of argument. (People v. Friend (2009) 47 Cal.4th 1, 32; People v. Stewart (2004) 33 Cal.4th 425, 484-485.) When examining the prosecutor's comments, we consider whether there is a reasonable likelihood the jury construed the prosecutor's statements in an objectionable manner. (People v. Friend, supra, 47 Cal.4th at p. 29.)
During closing arguments, the prosecutor recognized that the jury might feel sympathy for Cordova because of her young age, and urged the jury not to look at Cordova as "a child" and not to be swayed by compassion for her. In a case where the prosecutor was trying to convince the jury not to infer that Cordova was a young girl incapable of intending to commit a cold-blooded shooting, the description of the suffering Cordova must have observed and the characterization of Cordova as a "bad" person because of her attitude after the crime fell within the bounds of permissible, vigorous argument.
Cordova also cites the prosecutor's statements at the conclusion of his arguments where he stated the victim's death was eternal for her family, including her brother who would go to work knowing she spent her last day at his restaurant, her husband who was now a single father, and her young daughter who will grow into a young woman without a mother. Outside the presence of the jury, defense counsel objected to this argument, asserting that it improperly appealed to sympathy and emotion. Defense counsel requested either a mistrial or that the court reinstruct the jurors not to be influenced by bias or sympathy. Defense counsel noted that a juror began to cry during this last part of the prosecutor's argument, and asked the court to question the juror and replace her with an alternate if her opinion would be influenced by sympathy or emotion.
The court agreed with defense counsel that references to victim impact evidence were improper because this was not an issue in the case, but concluded a mistrial was not warranted because the statements were a very small part of the argument. The court also decided not to question the juror who cried at the end of oral argument, noting that several jurors cried at various times during trial because the case was a difficult, emotional one. Recognizing the case was very emotional, the court granted defense counsel's request to reinstruct the jury not be influenced by bias or sympathy. With the parties' agreement, the court reinstructed the jury with the standard instruction concerning sympathy (CALCRIM No. 200), and also instructed the jury not to "consider the impact the victim's death will have on the child."
As recognized by the trial court, the prosecutor's reference to the impact of the death on the victim's family was improper. (People v. Vance (2010) 188 Cal.App.4th 1182, 1193, 1199.) However, we presume the jury followed the trial court's admonition not to be swayed by sympathy. (People v. Wash (1993) 6 Cal.4th 215, 263.) Further, the prosecutor's comment on the impact of the death was brief and did not present any information to the jury that it could not surmise from the evidence. Cordova has not shown any egregious prosecutorial misconduct that caused an unfair trial, nor has she shown a miscarriage of justice. (People v. Stewart, supra, 33 Cal.4th at pp. 484-485.) The trial court did not err in denying the mistrial motion. (People v. Mendoza (2007) 42 Cal.4th 686, 704.)
F. Cumulative Error
Cordova argues the judgment should be reversed for cumulative error depriving her of a fair trial. The contention is unavailing. To the extent there was error in the aiding and abetting instructions and in the prosecutor's closing argument, the errors were not of the nature to have impacted the jury's verdict when the record is considered as whole.
II. SALINAS'S APPEAL
Salinas argues the trial court should have stayed the sentence for child endangerment because the child endangerment and kidnapping offenses involved the same objective of taking the victim's baby to a location where she could be found.
When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (§ 654; People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Whether a course of criminal conduct is divisible so as to allow multiple punishment under section 654 depends on whether the defendant had a separate objective for each offense. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) On appeal, we review a trial court's finding of separate objectives for substantial evidence. (People v. Andra (2007) 156 Cal.App.4th 638, 640.) We view the evidence in the light most favorable to the court's determination, and presume in support of the court's conclusion the existence of every fact that could reasonably be deduced from the evidence. (Id. at pp. 640-641.)
The trial court was not required to find that defendants' sole objective for the kidnapping and child endangerment offenses was to take the baby to a place where she could be found. Rather, the trial court could reasonably infer they had objectives apart from taking the baby to a place of safety, and their objectives were distinct for each offense.
The trial court found the child endangerment was separate from the kidnapping because the objective of shooting the mother within inches of the baby (i.e., child endangerment) was distinct from the objective of absconding with the child after the murder (i.e., kidnapping). Salinas argues the court could not rely on the shooting to show the objective for child endangerment because defendants did not have care and custody of the child at the time of the shooting.
The record shows that during discussions between the parties and the court, the prosecutor explained that although he wanted to research the matter further, he might not be relying on the shooting near the baby for child endangerment because the baby might not have been in defendants' care and custody at this time. In closing arguments to the jury, the prosecutor referred solely to the abandonment of the baby on the porch as the basis for the child endangerment charge.
Assuming arguendo the trial court could not properly rely on the shooting as the basis for the child endangerment offense, there is no need to remand the matter to the trial court for resentencing. When no federal constitutional error is involved, sentencing error with respect to the court's statement of reasons does not require reversal unless there is a reasonable probability of a more favorable outcome on remand. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684.) The evidence showed defendants wanted to steal a car; after the murder defendants drove away from the scene with the baby; and they then left the baby on the doorstep of a stranger's home. The record supports that defendants' conduct of driving away with the child (i.e., kidnapping) included the objective of stealing a car. The record supports that defendants abandoned the child on the doorstep with the distinct objective of disposing of the child so that they could not be tied to the victim's murder. Because the record provides ample evidence to support a finding of separate objectives, there is no reasonable probability the trial court would find a single objective were it to reconsider the matter.
III. RESTITUTION FINE
The trial court imposed a $40,000 restitution fine on Cordova under section 1202.4, subdivision (b). For Salinas, the court imposed the same restitution fine under section 1202.4, subdivision (b), plus a $40,000 parole revocation restitution fine under section 1202.45.
The Attorney General concedes, and we agree, that the maximum permissible restitution fine under section 1202.4, subdivision (b) is $10,000 for a single case against a defendant. (§1202.4, subd. (b)(1); People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534; see People v. Soria (2010) 48 Cal.4th 58, 62-66.) The same conclusion applies to the parole revocation restitution fine under section 1202.45. (People v. Ferris (2000) 82 Cal.App.4th 1272, 1276; see People v. Soria, supra, 48 Cal.4th at p. 62.)
We modify the judgments to reduce the section 1202.4 restitution fines to $10,000 for each defendant, and to reduce the section 1202.45 parole revocation restitution fine (applicable to Salinas only) to $10,000.
DISPOSITION
The judgments are modified to reduce the section 1202.4 restitution fines to $10,000 for each defendant, and to reduce the section 1202.45 parole revocation fine for Salinas to $10,000. As so modified, the judgments are affirmed. The superior court shall issue amended abstracts of judgment to reflect this modification, and forward copies of the amended abstracts to the Department of Corrections and Rehabilitation.
HALLER, J. WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.