Opinion
B220510
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. JOE ANTHONY TOLEDO, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Joe Anthony Toledo. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA082607)
APPEAL from a judgment of the Superior Court of Los Angeles County. Allen Joseph Webster, Judge. Affirmed.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Joe Anthony Toledo.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Joe Anthony Toledo of first degree murder, attempted manslaughter, and two counts each of attempted willful, deliberate and premeditated murder and assault with a semiautomatic firearm and found true several firearm and gang allegations. The trial court sentenced him to 110 years to life in prison. On appeal, Toledo contends the trial court made evidentiary and instructional errors. We affirm the judgment.
BACKGROUND
Toledo admitted at trial that he shot Cynthia Torres and Elizabeth Diaz in 2003 and participated in the shooting of Stacey (Dewan) Ferguson and Melvin Walker in 2005. The issue is motive.
a. The 2003 Shooting
Toledo is a member of the Compton Varrio 70 (CV70) street gang. In the early morning of January 9, 2003, Torres and Diaz drove to Toledo's house to retaliate for an earlier incident in which Toledo threatened Torres with a gun. When they broke the window of a van parked in Toledo's driveway, Toledo emerged from the house with a rifle and fired several shots at Torres and the women's car, and continued firing as the women drove away. Torres and Diaz were both shot multiple times but survived.
At trial, Toledo testified he at first shot in the air to scare the women away. Then he heard a bang and thought somebody was shooting at him, so he shot several times at the women's car, including when it was driving off. He testified, "I shot at the car from my porch. Then I walked to the driveway. The car was still there, and it drove up right in front of me, and I shot again, and then the car took off, and I shot maybe two more times. [¶] . . . [¶] I was just trying to shoot the tire off or something, but the gun that I had was pretty strong, and I had never shot a gun that big, and I was about a hundred pounds at the time, so it kicked pretty badly." Police discovered numerous bullet holes in the car.
After the shooting, Toledo reloaded the gun's magazines, hid the gun and ammunition, and went back to sleep.
b. The 2005 Shooting
On October 5, 2005, CV70 leader David Guerrero, to retaliate for the shooting of himself and Ricky Hernandez, the sister of another CV70 member, ordered several gang members to commit three shootings. Following Guerrero's instructions, Toledo, driving a backup car, followed several fellow CV70 members to a gas station, where individuals from the lead car shot Charles Smith and Jazmine McKinney. The gang members then proceeded to Gibson Street, where someone in the lead car shot at a house. Finally, the gang drove up to and shot Ferguson and Walker, members of the Leuders Park street gang, a CV70 rival. Walker was killed but Ferguson survived.
At trial, Toledo testified that his purpose in driving the backup car was to assist those in the lead car in case someone got behind them. He did not want to participate but Guerrero ordered him to, and he would have been beaten up if he had tried to leave. He did not expect the murder to happen.
Toledo was arrested in 2006. He was charged with the attempted murder of, and assault with a semiautomatic firearm upon Torres and Diaz, the attempted murder of Ferguson, and the murder of Walker. (Pen. Code, §§ 664/187, subd. (a), 245, subd. (b).)Gang and firearm enhancements were alleged as to all counts. (§§ 186.22, subd. (b), 12022.53, subds. (b), (d) & (e)(1).)
All undesignated statutory references will be to the Penal Code.
A jury convicted Toledo on all counts except the attempted murder of Diaz, as to which it convicted him of the lesser included offense of attempted manslaughter. The jury found all gun enhancement allegations to be true, as well as the gang allegations regarding the 2005 shooting of Ferguson and Walker, but found the gang allegations as to the 2003 shooting of Torres and Diaz to be untrue.
Toledo appeals his conviction.
DISCUSSION
1. Admission of Gang Evidence and Evidence of an Uncharged Murder
a. Gang Evidence
In his opening statement, the prosecutor, over Toledo's objection, told the jury that CV70 had been involved in a gang war since 1998 with several "Piru" street gangs, one of which was Leuders Park. The war began when a CV70 member shot a Leuders Park member in the eponymous Leuders Park. The prosecutor reviewed some dozen retaliatory shootings that occurred over the ensuing years, leaving gang members on both sides and their relatives dead, including Ms. Jimenez and Horace Ferguson, an 8-year-old boy. The prosecutor told the jury, "the individuals in this gang I am talking about are these gentlemen right here," referring to Toledo and his codefendant.
Ferguson, one of the three surviving victims in this case, testified regarding the CV70/Leuders Park feud. He said his family's house had been shot up three times, and three of his cousins and two friends had been killed and his brother injured in feud-related shootings over the years. Corey Ferguson, an associate of Leuders Park, testified over defendant's objection that he witnessed the murder of 8-year-old Horace Ferguson by a CV70 member in 2003.
Detective Peter Hecht, the People's gang expert, discussed the several incidents of CV70 gang violence previously introduced by the prosecutor. He testified that in 1998 Manuel Castillo, a CV70 member, shot Paul Spencer, a Leuders Park member, in Leuders Park. Lavelle Macleary, a Piru member, then shot Castillo in the face. Castillo killed Macleary a few weeks later. Members of Piru then killed Castillo's father and wounded his uncle. Later, Ms. Jimenez was murdered by two Black males while she was standing outside a car talking to CV70 leader Guerrero. It was suspected in the community that Guerrero was the intended target of the shooting and that the murder was committed by members of the Ferguson family, several of whom belonged to Leuders Park. Jimenez's brother retaliated by shooting Brandon Buckhalter, a Leuders Park associate, in 2003. CV70 members then shot and killed Kreshon Irving, a Piru member; two gentlemen named Mr. Porter and Mr. Wilson; and Darryl White, a member of the Ferguson family.
The trial court instructed the jury to consider the history of violence only to evaluate Hecht's opinion, not for the truth of the matter asserted. It later instructed the jury in accordance with CALCRIM No. 1403, which enjoins the jury to "consider evidence of gang activity only for the limited purpose of deciding whether: [¶] . . . The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements charged; [OR] . . . [t]he defendant had a motive to commit the crime[s] charged . . . . [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
b. Uncharged Murder
Buckhalter, who had been shot by Ms. Jimenez's brother in 2003, testified that Toledo and another CV70 member murdered his cousin, Darryl White, another Leuders Park associate, in 2002.
c. Contention
Toledo contends the court should have excluded most of the gang evidence and the evidence of the uncharged murder of Darryl White because it was irrelevant, cumulative and unduly prejudicial. We disagree as to the historical gang evidence but agree as to Buckhalter's testimony.
d. Legal Principles
Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action." (Evid. Code, § 210.) Nevertheless, relevant evidence should be excluded if the trial court, in its discretion, determines that "its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice." (Evid. Code, § 352.) In this context, unduly prejudicial evidence is evidence that would cause the jury to "prejudge" a person on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)
In a gang-related case, gang evidence is admissible to prove enhancement allegations and to establish the motive for charged crimes. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Williams (2009) 170 Cal.App.4th 587, 609.) But given its inflammatory impact, "[g]ang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense." (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) "Thus, as [a] general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative." (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) But the trial court "must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury." (People v. Albarran, supra, at p. 224.)
Evidence of specific instances of a person's conduct is "inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) But such evidence is admissible if relevant to prove some fact other than the defendant's disposition to commit a crime. (Evid. Code, § 1101, subd. (b).) "[E]vidence of prior bad acts always involves the risk of prejudice regardless of its probative value . . . ." (People v. Humiston (1993) 20 Cal.App.4th 460, 481.)
We review the trial court's decision on whether evidence, including gang evidence, is relevant and not unduly prejudicial for abuse of discretion. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
e. Analysis
Here, the historical shootings described by Hecht, Ferguson and Corey Ferguson, all of which took place before 2005, were directly relevant to the motive for the 2005 shootings, which were orchestrated by Guerrero, a CV70 leader who had himself been shot and was present when Ms. Jimenez was killed. The historical evidence was not unduly prejudicial, as evidenced by the jury's finding that the 2003 shootings of Torres and Diaz were not intended to benefit CV70. The jury also found Toledo not guilty of the attempted murder of Diaz, indicating it was not inflamed by the historical gang evidence and had not prejudged Toledo.
Toledo argues in a letter brief that this court previously found the historical shootings to be irrelevant to another murder allegedly committed by Toledo. (People v. Toledo (Oct. 5, 2011, B219800) [nonpub. opn.].) The argument is without merit. In that case, Toledo was alleged to have committed a murder in 2002. During trial, the prosecution presented the same historical gang evidence as was presented in the instant case. We held only that the crimes occurring after the 2002 murder, not those occurring before, were irrelevant.
In this vein, any historical shootings occurring after 2003 would be irrelevant to the 2003 shootings of Diaz and Torres. Furthermore, the prosecutor erred in his opening remarks when he told the jury that "the individuals in this gang I am talking about are these gentlemen right here," thereby associating Toledo and his codefendant with the historical shootings. But as we shall see, any errors in admitting evidence of post-2003 shootings to prove Toledo committed the 2003 shootings or in associating Toledo with the historical violence were harmless.
Buckhalter's testimony that Toledo murdered White in 2002 was inadmissible under Evidence Code section 1101, subdivision (a), as it had no purpose other than to show that he committed the 2003 and 2005 shootings. The People argue the evidence was admitted to impeach Toledo's assertions that he did not associate "much" with CV70's shot-callers, did not go on gang missions and was not a soldier for the gang. But we find no such assertions in the record. Although Toledo denied that he "hung out" with CV70 leaders "all the time," he did not deny associating with them. And although he was asked if he had ever gone on any gang missions, an objection and subsequent side bar discussion preempted his answer, after which the question was not re-asked. Finally, contrary to denying that he was a "soldier" to the gang, Toledo admitted he could be called that. The Buckhalter testimony had no legitimate purpose. Its admission was error.
f. Prejudice
Although the trial court erred in admitting evidence of post-2003 gang violence to prove the 2003 assaults on Diaz and Torres, and erred in admitting the Buckhalter testimony regarding the 2002 murder of White, the errors do not require reversal. An evidentiary error requires reversal only if it is prejudicial, that is, if a reasonable probability exists that, absent the errors, the defendant would have obtained a more favorable to verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, the prejudicial impact of the erroneously admitted evidence was minimal. Nothing in Ferguson's, Hecht's or Corey Ferguson's testimony suggested Toledo was involved in the historical gang violence. Although the prosecutor associated him with the violence ("the individuals in this gang I am talking about are these gentlemen right here"), the association was momentary and ambiguous, and the violence was not reasonably attributable to Toledo, who was 12 years old when the first acts of violence occurred in 1998. Any error was cured in part by the court's instruction to the jury to consider the historical evidence only as the basis of Hecht's opinion and to prove the gang enhancement allegations, not as evidence of Toledo's substantive guilt. The jury's finding Toledo not guilty of the attempted murder of Diaz and their finding that the 2003 shootings were not committed to benefit CV70 are evidence that the instructions were effective.
Furthermore, the evidence of guilt was strong—Toledo admitted to participating in the 2003 and 2005 shootings, and his defenses—that he shot Torres and Diaz accidentally and participated in the 2005 shootings under coercion—were incredible.
Toledo claimed he shot Torres and Diaz accidentally: He was aiming at their tires, not them. No reasonable jury would have believed the claim. Toledo shot each woman several times, even as they drove away. There were several bullet holes in their car, none of which hit the tires, even though he fired at close range, and after the shooting, he reloaded the gun and went back to sleep.
Toledo's claim that he was coerced by CV70 leaders in 2005 was equally incredible, and at any rate could only have been bolstered by the gang evidence, not undermined by it. Toledo testified Guerrero was a CV70 leader, was incensed by the historical assaults on CV70 members and associates, and would use violence to enforce his commands. Toledo thus not only reaffirmed the testimony of Hecht, Ferguson and Corey Ferguson, their testimony supported his duress theory. Toledo's claim that he did not know the shooting of Ferguson and Walker would occur was fatuous—he had participated in two shootings immediately prior to the last one and was told the gang was going out to commit the third assault. No reasonable jury would have believed Toledo's explanation, even absent the improperly admitted gang evidence.
Where there is "'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result,'" the error is prejudicial. (People v. Mower (2002) 28 Cal.4th 457, 484, quoting People v. Watson, supra, 46 Cal.2d at p. 837.) Here, there is no such balance because no reasonable jury would have believed Toledo even absent the improperly admitted gang evidence.
2. Admission of Toledo's Statements Made to Police
Toledo made several incriminating statements during police interviews and contends the police impliedly promised they would release him if he told the truth. These statements were admitted at trial over his objection. Toledo contends this was error. We disagree.
Sheriff's detective Steinwand testified that the only promise police made to Toledo was that "if [he was] honest, [they'd] talk to the . . . District Attorney." The trial court reviewed transcriptions of the police interviews and concluded, "So I don't see where there's any sort of deal or anything that the sheriffs did wrong or inappropriate. So I don't see that there's any coercion, any force. . . . So the motion [to suppress] will be denied."
"'The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession. [Citation.] [These provisions] require[ ] the prosecution to establish, by a preponderance of the evidence, that a defendant's confession was voluntary. . . . [¶] Under both state and federal law, courts apply a "totality of circumstances" test to determine the voluntariness of a confession. . . . On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review. [Citations.] In determining whether a confession was voluntary, "[t]he question is whether defendant's choice to confess was not 'essentially free' because his will was overborne."' [Citation.] [¶] . . . [¶] 'It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, "if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible . . . ."' [Citations.] [¶] 'Once a suspect has been properly advised of his rights, he may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect. . . . Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession. . . . [The police] are authorized to interview suspects who have been advised of their rights, but they must conduct the interview without the undue pressure that amounts to coercion and without the dishonesty and trickery that amounts to false promise.' [Citation.]" (People v. Holloway (2004) 33 Cal.4th 96, 114-115.)
Law enforcement officers may advise a suspect to tell the truth (People v. Jimenez (1978) 21 Cal.3d 595, 611), employ moral and psychological pressures (Oregon v. Elstad (1985) 470 U.S. 298, 304-305 [105 S.Ct. 1285, 84 L.Ed.2d 2222]), or use trickery to extract a confession (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240). But it is well settled officers may not overbear the will of the suspect and coerce the suspect into making a confession. (People v. Maury (2003) 30 Cal.4th 342, 404.) Here, police told Toledo (1) that they would speak with the district attorney if he told the truth and (2) that although they could make no promises, the only way he would get out of jail was if he would go undercover for police to help them arrest the 2005 shooters.
Neither statement overbore Toledo's will or coerced his statements.
3. Instructions Regarding Premeditation and Deliberation.
As mentioned, the jury convicted Toledo of the first degree murder of Walker and the attempted willful, deliberate and premeditated murder of Ferguson. The prosecution's theory was that other members of CV70 were the actual shooters and Toledo an aider and abettor or co-conspirator. Toledo contends CALCRIM jury instructions failed to inform jury about the relationship between the natural and probable consequences doctrine and the premeditation and deliberation element of both first degree murder and attempted premeditated murder. As we conclude below, the jury instructions were proper.
a. aiding and abetting or conspiracy to commit murder and attempted murder
A person who aids and abets the commission of a crime or advises and encourages its commission is a principal in the crime and shares the guilt of the actual perpetrator. (§ 31.) A person aids and abets the commission of a crime when he, "'with knowledge of the unlawful purpose of the perpetrator,'" and with "'the intent or purpose of committing, encouraging, or facilitating,'" commission of the crime, "'by act or advice aids, promotes, encourages or instigates the commission of the crime.'" (People v. Prettyman (1996) 14 Cal.4th 248, 259.) An aider and abettor or a conspirator is guilty not only of the offense he intended to facilitate or encourage (the target offense) but also of any other crime (the nontarget offense) committed by the actual perpetrator that is a "'natural and probable consequence'" of the target offense. (Id. at pp. 260-261.) A criminal act is a natural and probable consequence of the target offense if it is a reasonably foreseeable consequence of that offense. (People v. Medina (2009) 46 Cal.4th 913, 920.) "'[T]to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . ." [Citation.]' [Citation] "A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury." (Ibid.)
The crime of murder is divided into degrees. First degree murder includes murder that is perpetrated by any kind of willful, deliberated and premeditated killing. (§ 189.) The crime of attempted murder is not divided into degrees, but if the murder attempted is willful, deliberate and premeditated, enhanced punishment may be imposed. (§ 664, subd. (a).) The word "willful" means intentional. (People v. Moon (2005) 37 Cal.4th 1, 29.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) We will henceforth use the term "premeditated" to stand for "willful, deliberate and premeditated."
b. failure to instruct that the perpetrator's mental state must be a natural and probable consequence of the target offense
The court instructed the jury in accordance with CALCRIM No. 521 that if it found Toledo had committed a murder it must decide whether it was murder of the first or second degree. First degree murder, the court instructed, is murder that is willful, deliberate and premeditated. (§ 189.) The court instructed the jury in accordance with CALCRIM Nos. 403, 416, 417, 419 and 420 that if it found Toledo conspired to commit the target offense—assault with a deadly weapon—or aided and abetted commission of the offense, it could find him guilty of the charged offenses—murder and attempted murder—if it found those offenses were natural and probable consequences of the target crime. The court instructed that a "natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes."
Relying on People v. Hart (2009) 176 Cal.App.4th 662, Toledo argues the trial court failed to inform the jury that to find him guilty of first degree murder and attempted premeditated murder it had to find that premeditated murder had to be a natural and probable consequence of the assault on Walker and Ferguson. In other words, the court failed to inform the jury that it had to find not only that the murder and attempted murder were natural and probable consequences of assault with a deadly weapon, but also that the perpetrators' premeditation and deliberation were natural and probable consequences. Citing In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368], Toledo claims the failure to instruct lessened the prosecution's burden of proof and violated his constitutional rights to due process, a fair trial, a jury trial, and proof of guilt of every element of the charged crimes beyond a reasonable doubt.
In People v. Hart, supra, 176 Cal.App.4th 662, the defendant and a companion entered a liquor store intending to rob the proprietors. The companion exhibited a gun and demanded money. After seeing the proprietors' gun in an open drawer below the cash register, the companion shot one of the proprietors. (Id. at pp. 665-666.) After the court gave jury instructions substantially identical to those given here, the defendant was convicted of attempted murder on an aiding and abetting theory. On appeal, defendant contended the trial court's instruction on the natural and probable consequences doctrine did not adequately inform the jury that to find guilt on an aiding and abetting theory under the natural and probable consequence doctrine it had to find that the perpetrator's premeditation was a natural and probable consequence of the target crime—robbery. (Id. at p. 668.) Citing their earlier decision in People v. Woods (1992) 8 Cal.App.4th 1570, our colleagues in the Third District agreed.
In People v. Woods, the defendant and a companion assaulted two people in an apartment. When they left the apartment, the companion shot at the occupants of a car on the street, killing one occupant and injuring another. During trial, the jury asked, "'Can a defendant be found guilty of aiding and abetting a murder in the second degree if the actual perpetrator of the same murder is determined to be guilty of murder in the first degree?'" (8 Cal.App.4th at p. 1579.) The trial court answered, "No." In its majority opinion (over Justice Spark's dissent), the Third District held this answer was prejudicial error, stating, "If the evidence raises a question whether the offense charged against the aider and abettor is a reasonably foreseeable consequence of the criminal act originally aided and abetted but would support a finding that a necessarily included offense committed by the perpetrator was such a consequence, the trial court has a duty to instruct sua sponte on the necessarily included offense as part of the jury instructions on aider and abettor liability. Otherwise, . . . the jury would be given an unwarranted, all-or-nothing choice concerning aider and abettor liability." (Id. at p. 1593.)
In the dissent, Justice Sparks thought "[t]he majority slice[d] the foreseeability requirement too thin and needlessly superimpose[d] another layer of complexity upon the jury and the court. Since an aider and abettor may be liable for a crime he did not intend [citation]," Justice Sparks wrote, "it is not necessary that he foresee the precise manner or method of the execution of the charged crime. . . . [I]t is not necessary that the aider and abettor precisely foresee that the killing might be a premeditated one to prevent detection rather than an unpremeditated, panicked reaction to witnesses appearing on the scene. . . . What is crucial is that the aider and abettor either knew or should have known that a killing was a likely result of this abetted criminal rampage, not whether this foreseeable killing might constitute first degree murder as opposed to second degree murder or some variety of manslaughter. Aiders and abettors are not lawyers and their liability should not turn on the abstruse distinctions between the various types of criminal homicide. 'A primary rationale for punishing aiders and abettors as principals—to deter them from aiding or encouraging the commission of offenses' [citation], would not be advanced by engrafting such rarefied distinctions on the derivative liability of accomplices. The majority concedes that homicide was a foreseeable consequence of this criminal enterprise and that ought to end the matter." (People v. Woods, supra, 8 Cal.App.4th at pp. 1602-1603, dis. opn. of Sparks, J.)
Expanding on its holding in People v. Woods, the Third District in People v. Hart held the trial court must instruct not only on the foreseeability of necessarily included offenses committed by the perpetrator (in addition to the charged offense), it must instruct on the foreseeability of different mentes reae that could lead to different levels of guilt. Under the facts before it, the court stated, the jury could have concluded that attempted premeditated murder was not a natural and probable consequence of the attempted robbery—only attempted unpremeditated murder was, and "the instructions were insufficient to inform the jury concerning its duty in this regard." (176 Cal.App.4th at p. 670.)
We reached a different conclusion on analogous facts in People v. Cummins (2005) 127 Cal.App.4th 667. There, the defendant and a companion robbed and carjacked a driver, then either defendant or the companion pushed the victim off a cliff. The defendant was convicted of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine. On appeal, he claimed the trial court should have instructed the jury that to find him guilty of attempted premeditated murder as an aider and abettor it had to find that the perpetrator's premeditation was a natural and probable consequence of the target crimes, robbery and carjacking. We disagreed, holding that the jury need be instructed only that the act of attempted murder itself was a natural and probable consequence of the target crimes, not that the perpetrator's mental state also had to be a natural and probable consequence. (Id. at pp. 680-681.)
Last year, Division Four of this district decided People v. Favor (2010) 190 Cal.App.4th 770, agreeing with our holding in People v. Cummins that the jury need not be instructed that a premeditated attempt to murder must have been a natural and probable consequence of the target offense. (Id. at p. 776.) Our Supreme Court granted review of People v. Favor on the following issue: "In order for an aider and abettor to be convicted of attempted willful, deliberate and premeditated murder by application of the natural and probable consequences doctrine, must a premeditated attempt to murder have been a reasonably foreseeable consequence of the target offense, or is it sufficient that an attempted murder would be reasonably foreseeable?" (People v. Favor, review granted March 16, 2011, S189317.)
Until directed otherwise, we will reaffirm our holding in People v. Cummins. Although asking the jury to distinguish the foreseeability of one mental state from the foreseeability of another in an effort to determine whether an accomplice is guilty of a greater or lesser offense would perhaps serve the interests of lenity and analytical symmetry, as a practical matter, any mental state accompanying a foreseeable act is itself foreseeable. We are hard pressed to imagine facts under which a jury could conclude that a perpetrator's act was a natural and probable consequence of a target crime but any particular mental state when committing the act was not. We agree with the majority in People v. Woods that a jury must be instructed on the foreseeability of lesser included offenses, but only when the foreseeability of the lesser and greater offenses is distinguishable. For example, on proper facts a perpetrator's gun use might have been foreseeable but not his use of armor piercing ammunition, and thus an accomplice could be guilty of second degree murder while the perpetrator was guilty of murder in the first degree. (§ 189.) But in the main, all states of mind are equally foreseeable. When only mens rea distinguishes one offense from another, no instruction on the foreseeability of different states of mind need be given.
Such is the case here. Toledo was a willing and active participant in all the steps that led to the 2005 shootings. Although he was not in the lead car, he admittedly facilitated the shooting by driving the backup car. The jury was properly instructed on the elements of attempted premeditated murder and the natural and probable consequences doctrine and, based on the evidence, found the 2005 shooting to be willful, deliberate, premeditated, and foreseeable. No further instruction was required. (People v. Cummins, supra, 127 Cal.App.4th 680-681.)
Even if the instructions given were deficient, the error was harmless, as it is not reasonably likely that had the instruction Toledo requests been given, a more favorable result would have ensued. (People v. Prince (2007) 40 Cal.4th 1179, 1267; People v. Breverman (1998) 19 Cal.4th 142, 165 [failure to instruct on lesser included offense in a noncapital case is subject to the Watson standard of harmless error].) While the prosecution's theory of this case was that Toledo was culpable as an aider and abettor, he was intimately involved in the shootings of Walker and Ferguson. He drove the backup car from which Jose Enciso, a CV70 leader, directed the perpetrators. He knew his fellow gang members were armed and intended to shoot CV70 rivals in retaliation for earlier shootings. He more than aided the shooters, he was a full and active participant in all the steps that led to the shooting. Under these circumstances, it is not reasonably likely the jury would have failed to find that a reasonable person in Toledo's position would have known that a premeditated murder was likely to occur.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, J. We concur:
MALLANO, P. J.
JOHNSON, J.