Opinion
C036614, C037039
Filed June 25, 2003 Certified for Partial Publication REVIEW GRANTED OCTOBER 1, 2003
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts III through XIV.
APPEAL from a judgment of the Superior Court of San Joaquin County, No. SF074536A, No. SF074536B, F. Clark Sueyres, Judge. Affirmed in part and reversed in part.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Elisio Valdez.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Johnnie Ray Peraza.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stephen G. Herndon and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Elisio Valdez and Johnnie Ray Peraza were convicted of various gang-related crimes, including the murders of Andrea Mestas and her fetus, the premeditated attempted murder of Ronny Giminez, and the false imprisonment and aggravated assault of Nancy Davis. Defendant Valdez was sentenced to multiple life sentences, plus a determinate term of 11 years and 8 months in prison. Defendant Peraza received multiple life sentences, plus a determinate term of 14 years in prison.
On appeal, defendants raise numerous claims of error, two of which we address in the published parts of this opinion.
According to defendants, California's murder statute (Pen. Code, § 187, subd. (a)) does not apply to the killing of a fetus that, even absent criminal intervention, would not have survived until birth due to a fatal physical or medical condition; thus, the trial court erred in excluding evidence that Mestas's fetus suffered from such a condition. We disagree. As we will explain, in defining murder to include the unlawful killing of both a human being and a "fetus" with malice aforethought, the Legislature has made a policy decision that fetal life is entitled to the same protection as human life. In making this decision, it did not limit the term "fetus" to a fetus which is not suffering from a fatal condition that will prevent it from surviving until birth. Just as the murder statute protects human beings who are suffering from fatal conditions and have little time to live, it protects fetuses suffering from fatal conditions.
We find merit, however, in defendants' contention that to be convicted of the implied malice murder of Mestas's fetus, they had to have reason to believe that Mestas was pregnant. This is so because the death of a fetus is not the natural and probable consequence of shooting and killing a woman; it is the natural and probable consequence of shooting and killing a pregnant woman. The shooter cannot have subjectively appreciated the risk to fetal life as a consequence of shooting the woman unless the shooter had reason to believe that the woman was pregnant, either because the shooter had been told of this fact or because the pregnancy was physically apparent.
For reasons to follow, we also conclude that it is reasonably likely the court's instructions on implied malice, coupled with the prosecutor's erroneous statements of the law during argument, misled the jurors into thinking they could convict defendants on both murders while finding malice aforethought only as to Mestas's death. Accordingly, we shall reverse the convictions for murder of Mestas's fetus and also reverse the multiple murder special circumstance findings.
In the unpublished parts of our opinion, we address defendants' other claims and conclude that certain sentencing error must be corrected.
FACTS AND PROCEDURAL BACKGROUND
Defendants' convictions are based upon events that occurred on July 13, 1998. We summarize the facts in the light most favorable to the judgment. ( People v. Mayfield (1997) 14 Cal.4th 668, 767.)At about 4:15 a.m., defendant Valdez knocked at the door to Ronny Giminez's apartment. When Giminez opened the door, Valdez asked if he was "Ronny" and whether apartment 3 was for rent. As Giminez looked toward apartment 3, Valdez fired a gun. The bullet missed Giminez but penetrated the ceiling of the apartment. Giminez struggled with Valdez and managed to get the door shut. After police responded to the scene, Giminez identified Valdez as the assailant. However, he recanted the identification at trial.
Around 5:00 a.m., Andrea Mestas's daughter, Angelina, was in the living room of their home when Mestas opened the door and spoke to a man who asked if he could use the telephone. According to Angelina, Mestas said the phone was not working and began yelling, "No, Elisio, no." Angelina then saw defendant Valdez shoot Mestas twice at close range and run away. A car similar to one owned by defendant Peraza was observed leaving the scene. When officers responded to Angelina's 9-1-1 call, they found Mestas dead, lying face down in her blood. An autopsy revealed that defendant Valdez's gun had been within inches of Mestas's chest when the fatal bullet that perforated her heart was fired. Mestas was pregnant with a 16- to 17-week-old fetus, which perished as the result of Mestas's death.
Shortly before 5:30 a.m., two men in a car similar to one owned by defendant Peraza twice drove by Giminez's apartment. Multiple gunshots fired out of the passenger side of the car riddled the apartment with bullet holes.
At about 7:00 a.m., defendant Peraza came to the apartment of his girlfriend, Nancy Davis, and asked to speak with her. When Davis told Peraza that he was not welcome and refused to let him in, Peraza pulled a firearm from his pants, pointed it at her, and said, "Don't fuck with me." Davis fled to her bedroom, closed the door, and telephoned 9-1-1 to report that Peraza was there with a gun. Peraza forced his way into the bedroom and pulled back the slide of his gun to demonstrate that it was loaded. Outside the bedroom, Davis's sister, Julia Raines, heard the sound of the gun being manipulated and Davis crying. Raines left to get help. Police arrived while defendant Peraza was inside the apartment, holding Davis and her children hostage. Peraza fled by jumping over the backyard fence. He was captured in a building on an adjacent property.
Defendant Peraza's gun was found hidden inside Davis's apartment. A ballistics test revealed that bullets recovered from the scene of the Giminez shootings and the Mestas murder had been fired from Peraza's gun. In Peraza's car, officers discovered an expended shell casing that matched casings found at Giminez's residence.
Davis informed the police that, while defendant Peraza was in her apartment, he told her that he had killed Giminez. Defendant Peraza later told Valdez's brother-in-law, Robert Juarez, that he had murdered Mestas.
The prosecutor theorized that defendants went to Mestas's apartment intending to kill her boyfriend, David Ortega, on orders from the Nuestra Familia, a prison gang. The prosecutor also presented evidence that the Nuestra Familia considered Mestas to be a "rat" and a "snitch."
As to the motive for the Giminez shootings and the crimes against defendant Peraza's girlfriend, Nancy Davis, evidence indicated that Peraza was upset because Davis had been seeing Giminez, the father of three of her children.
DISCUSSION I
Defendants' first claim of error concerns their convictions for murdering a fetus. (Pen. Code, § 187, subd. (a); further section references are to this code unless otherwise specified.) They contend the trial court erred in excluding evidence that, if there were no shooting, Mestas's fetus would not have survived past the second trimester because of a fatal medical condition.
Defendant Valdez sought to introduce the following evidence at trial. During the autopsy of Mestas, Dr. Sally Fitterer determined that Mestas was 16 to 17 weeks pregnant with a male fetus, which perished as a result of Mestas's death. Microscopic examination of the placenta revealed areas of "focal necrosis or cell death." Placental autopsy slides were sent to Dr. Baergen, a pathologist, who found considerable chronic inflammation of the implantation site — where the placenta attaches to the uterine wall — as well as acute inflammation of the membranes surrounding the fetus. Both doctors opined that the infection made it unlikely that the fetus would have survived to term in utero. According to Dr. Fitterer, problems would have developed during the second trimester.
Defense counsel claimed the Legislature had made a policy decision to protect fetal life because it was "potential life," which necessarily anticipates a live birth. Therefore, counsel argued, if medical evidence showed that the fetus would not have survived to term, even absent defendants' criminal intervention, it was not potential life for purposes of a murder charge.
The court ruled the evidence was irrelevant and inadmissible because viability is not an element of fetal homicide under section 187, subdivision (a). ( People v. Davis (1994) 7 Cal.4th 797, 814-815.)
Defendants contend the trial court erred since fetal viability is not the same thing as "survivability," which defendant Valdez defines as meaning the fetus likely would have completed gestation and been born absent the criminal intervention of a third party. Relying on Roe v. Wade (1973) 410 U.S. 113 [ 35 L.Ed.2d 147] and subsequent abortion rights decisions, Valdez reiterates the position he took in the trial court that (1) the Legislature's purpose in protecting fetal life is the protection of "potential human life," and (2) thus, if a fetus has no chance of developing until birth, it is not potential life and murder of such a fetus does not fall within the proscription of section 187, subdivision (a).
Valdez even goes so far as to claim that, "if interpreted to apply to the killing of a fetus which is mortally diseased, [the murder statute] violates the cruel and unusual punishment provisions of the state and federal constitutions."
It follows, defendants argue, the court erred in excluding evidence that, even absent defendants' criminal intervention, Mestas's fetus would not have survived until birth.
We note defendants did not offer any evidence in the trial court showing there was no possibility that medical intervention could have prevented the fetus from perishing as a result of the inflammation. Hence, they failed to establish the factual predicate for their legal claim.
As we will explain, the contentions lack merit, and the proffered evidence was properly excluded.
A
After the California Supreme Court held that the former prohibition against the unlawful killing of a human being did not encompass the murder of a fetus ( Keeler v. Superior Court (1970) 2 Cal.3d 619), the Legislature amended section 187, subdivision (a), to include the unlawful killing of a fetus. (Stats. 1970, ch. 1311, § 1, p. 2440.) The amended statute reads: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." It applies except when the death of the fetus resulted from a lawful abortion. (§ 187, subd. (b).)
The Legislature did not define "fetus" to be the equivalent of "human being," and it did not similarly amend section 192, which defines manslaughter as "the unlawful killing of a human being without malice." Consequently, a fetus is not a human being within the meaning of the murder statute. ( People v. Dennis (1998) 17 Cal.4th 468, 505.) It is an unborn human offspring in the postembryonic period after major structures have been outlined, which typically occurs seven or eight weeks after fertilization. ( People v. Davis, supra, 7 Cal.4th at pp. 810, 814-815.)
Because the Legislature did not define "fetus" to be the equivalent of "human being," and did not similarly amend section 192, which defines manslaughter as "the unlawful killing of a human being without malice," there is no crime of manslaughter of a fetus. ( People v. Brown (1995) 35 Cal.App.4th 1585, 1592-1594; accord, People v. Dennis, supra, 17 Cal.4th at pp. 505-506.)
Although a fetus is not a human being within the meaning of the murder statute, the Legislature made the policy decision that fetal life is entitled to the same protection as human life, except where the mother's paramount privacy interests are at stake. ( People v. Dennis, supra, 17 Cal.4th at p. 511; People v. Davis, supra, 7 Cal.4th at pp. 803, 809-810.)
In making this policy decision, the Legislature was aware that it could have limited the term "fetus" to "viable fetus," but it did not do so. ( People v. Davis, supra, 7 Cal.4th at p. 803.) Likewise, the Legislature did not require that, to be covered by the murder statute, the fetus must not be suffering from a fatal condition that would prevent it from developing until birth. Under the plain language of section 187, subdivision (a), fetuses with terminal conditions are nonetheless fetuses protected from an unlawful killing.
Defendants' reliance on Roe v. Wade, supra, 410 U.S. 113 [ 35 L.Ed.2d 147] and its progeny is misplaced because the legal principles in those decisions are inapplicable to a statute that criminalizes the unlawful killing of a fetus without the mother's consent. ( People v. Davis, supra, 7 Cal.4th at p. 807.) Moreover, defendants point to nothing in those decisions to support a conclusion that the state's legitimate "interest in protecting fetal life or potential life" ( Planned Parenthood v. Casey (1992) 505 U.S. 833, 876 [ 120 L.Ed.2d 674, 714]; italics added) does not extend to fetuses with fatal conditions.
Despite statistical evidence disclosing that many fetuses spontaneously miscarry in the early stages of pregnancy (Comment, Severe Penalties for the Destruction of `Potential Life' — Cruel and Unusual Punishment? (1995) 29 U.S.F. L.Rev. 463, 493-494), the Legislature did not limit the application of section 187, subdivision (a), to fetuses at stages of development that make them statistically more likely to survive until birth.
Instead, as we have noted, the Legislature made the policy decision to protect fetal life in the same manner that it protects human life, except where the mother's paramount privacy interests are at stake. Section 187, subdivision (a), protects human beings who are suffering from fatal conditions and have little time to live. "Murder is never more than the shortening of life; if a defendant's culpable act has significantly decreased the span of a human life, the law will not hear him say that his victim would thereafter have died in any event." ( People v. Phillips (1966) 64 Cal.2d 574, 579, disapproved on another point in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12; People v. Moan (1884) 65 Cal. 532, 537.) It follows that the statute likewise must be construed to protect fetuses suffering from fatal conditions.
B
We reject defendants' claim that murder of a "non-survivable" fetus "is a much less serious offense" than murder of a human being and, thus, construing the murder statute to apply to such a fetus would violate constitutional prohibitions against cruel and unusual punishment.
Although not "cruel or unusual" in its method, a punishment may violate California's Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." ( In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Factors relevant to the assessment of such a claim include (1) the nature of the offense and the offender, (2) whether more serious crimes are punished in this state less severely than the offense in question, and (3) whether the same offense is punished more severely in this state than in other jurisdictions. ( Id. at pp. 425-427.) Defendants focus on the second and third factors.
As to the second factor, their argument is terse. They simply state: "In California, feticide has the same punishment as murder. But killing of a non-survivable feticide [ sic] is not a comparable offense to murder: it is a much less serious offense, because the non-survivable fetus is not a potential human life."
This comparison to the penalty for murder of a human being in California is flawed because defendants underestimate the severity of the murder of a "non-survivable" fetus. As we have pointed out, the state has a legitimate interest in the protection of fetal life. ( Planned Parenthood v. Casey, supra, 505 U.S. at p. 876 [ 120 L.Ed.2d at p. 714].) "The fact that the victim murdered is an unborn child does not render defendant less culpable, or the crime less severe, in light of the Legislature's determination that . . . fetuses receive the same protection under the murder statute as persons." ( People v. Bunyard (1988) 45 Cal.3d 1189, 1240.)
Receiving the same protection under the murder statute means that, just as the state may penalize an act that unlawfully shortens the existence of a terminally-ill human being, it may penalize an act that unlawfully shortens the existence of a fetus which later would have perished before birth due to natural causes. ( People v. Phillips, supra, 64 Cal.2d at p. 579; People v. Moan, supra, 65 Cal. at p. 537.)
Regarding the third factor, defendants' comparison of the punishment for feticide in California to punishments for feticide in other jurisdictions fails to provide any meaningful analysis of those other laws or to demonstrate that they would not apply under the facts of this case. They simply assert "California is unique in imposing murder penalties to the killing of a non-survivable fetus" and, thus, it is excessively harsh to permit a conviction for murdering such a fetus.
This assertion is undermined by our state Supreme Court's observation in People v. Davis, supra, 7 Cal.4th 797, that murder statutes in Arizona, Illinois, Louisiana, Minnesota, North Dakota, and Utah, criminalizing the nonconsensual killing of an "unborn child," do not require the unborn to have reached a particular stage of development. ( Id. at p. 808.) Therefore, California is not as unique as defendants claim.
Moreover, the fact that "California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code." ( People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) "[T]he needs and concerns of a particular state may induce it to treat certain crimes . . . more severely than any other state. . . . [¶] Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalty is not an exact science but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. . . . Thus, the judiciary should not interfere in the process unless a statute prescribes a penalty `"out of all proportion to the offense."' [Citation.]" ( People v. Cooper (1996) 43 Cal.App.4th 815, 827; see also Ewing v. California (2003) 538 U.S. ___ [ 155 L.Ed.2d 108, 119, 127] (lead opn. of O'Connor, J. dis. opn. of Breyer, J.) [the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime].)
Our Legislature made a policy decision to protect fetal life in the same manner as the life of a human being. In light of the state's legitimate interest in protecting fetal life, we cannot say that it is grossly disproportionate, or that it shocks the conscience or offends fundamental notions of human dignity, to punish as murder the unlawful killing of a fetus which, due to a physical or medical condition, may not otherwise survive until birth. In other words, construing California's murder statute to apply to the killing of "a non-survivable fetus" does not violate the cruel and/or unusual punishment clauses of the state and federal Constitutions.
In passing, defendants assert they did not know Mestas was pregnant when Valdez shot her and, in doing so, murdered her fetus; thus, their "punishment [for feticide] also fails the first prong of the Lynch test," i.e., an assessment of the nature of the offense and the offender. ( In re Lynch, supra, 8 Cal.3d at p. 425.) We address this as-applied factor in part II, post.
II
In prosecuting defendants for the murder of Mestas's fetus, the district attorney did not advance the theories of transferred intent or felony-murder, and the jury was not instructed on those principles of law. Therefore, we do not consider them. The only theories presented by the prosecutor were that defendants acted with either express or implied malice. Indeed, implied malice was the theory upon which the prosecutor focused during argument to the jury.Defendants contend that, in order to find that they harbored malice toward Mestas's fetus, it was necessary for the jury to find that they had reason to believe Mestas was pregnant. Hence, they argue, reversal of the feticide conviction is necessary because the jury instructions permitted the conviction even if the jurors found that defendants had no reason to know of the existence of the fetus.
Defendants point out that Mestas was only 16 or 17 weeks pregnant and that, simply by looking at her, the autopsy physician could not tell she was pregnant. Moreover, the prosecutor told the jury it was unnecessary for defendants to know that Mestas was pregnant; rather, the prosecutor argued, all that was needed to convict defendants on an implied malice theory was an intentional killing of Mestas because this was sufficient to establish the requisite conscious disregard of human life.
A
We do not know whether defendants' convictions for the second degree murder of Mestas's fetus were based upon a finding that they harbored express malice toward the fetus or upon an implied malice theory. However, as we will explain in part IIB, post, it is reasonably likely that the jurors believed they could return a feticide conviction on an implied malice theory even if defendants had no idea that Mestas was pregnant.
Thus, we begin by addressing whether a defendant must have reason to believe that a woman is pregnant before he can be convicted of the implied malice murder of the woman's fetus.
This question is currently before the California Supreme Court in People v. Taylor, review granted February 19, 2003, S112443.
To establish murder with implied malice, the prosecution has to prove both a physical and a mental component. ( People v. Nieto Benitez (1992) 4 Cal.4th 91, 106) The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. The mental component involves an act deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. ( Id. at pp. 106-107.) The defendant must actually appreciate the risk involved. ( People v. Watson (1981) 30 Cal.3d 290, 296-297.)
When dealing with the murder of a fetus, the prosecution must prove that the defendant harbored malice toward the fetus, which is different than showing implied malice toward the woman carrying the fetus because, as previously explained, a fetus is not the same as a human being within the meaning of the murder statute. ( People v. Dennis, supra, 17 Cal.4th at p. 505.) For example, repeatedly punching the stomach of a woman known to be pregnant is sufficient to establish a conscious disregard for the life of her fetus even if it does not show that the woman's life was endangered. This is so because the natural and probable consequence of such conduct would be the endangerment of the life of the fetus. ( People v. Brown, supra, 35 Cal.App.4th at p. 1599.)
Turning to the facts of this case, the death of a fetus is not the natural and probable consequence of shooting and killing a woman; it is the natural and probable consequence of shooting and killing a pregnant woman. The shooter cannot have subjectively appreciated the risk to fetal life as a consequence of shooting the woman unless the shooter had reason to believe that the woman was pregnant, either because the shooter had been told of this fact or because the pregnancy was physically apparent. (See People v. Watson, supra, 30 Cal.3d at p. 296-297 ["a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard" (orig. italics)]; 2 LaFave Scott, Substantive Criminal Law (1986) § 7.4, p. 201 ["it is what the defendant should realize to be the degree of risk, in the light of the surrounding circumstances which he knows"].)
The People disagree, relying on the following language in People v. Roberts (1992) 2 Cal.4th 271: "[M]oral culpability is found in homicide cases when, despite the lack of any intent to kill, the consequences of the evil act are so natural or probable that liability is established as a matter of policy. Thus, for example, the Legislature has chosen to designate certain felonies as so inherently dangerous that death in the course of their commission or completion constitutes first degree murder. (§ 189.) Or, under the common law doctrine of transferred intent, if A shoots at B with malice aforethought but instead kills C, who is standing nearby, A is deemed liable for murder notwithstanding lack of intent to kill C. [Citation.] And liability for second degree murder will attach if the circumstances of an act show express or implied malice, which latter mental state may be found `when the circumstances attending the killing show an abandoned and malignant heart' (§ 188). In other words, implied malice may be found when a defendant, knowing that his or her conduct endangers life and acting with conscious disregard of the danger, commits an act the natural consequences of which are dangerous to life. [Citation.] Thus, to invoke a classic example, a person who fires a bullet through a window, not knowing or caring whether anyone is behind it, may be liable for homicide regardless of any intent to kill." ( Id. at pp. 316-317.)
The People apparently view a woman's body as being akin to a dwelling where a fetus lives. The analogy is inapt.
Shooting into an inhabited dwelling or an occupied building is an act that is inherently dangerous to human life because "there always will exist a significant likelihood" persons are present in such a structure, thereby creating a "great risk or `high probability' of death" to these unknown persons. ( People v. Hansen (1994) 9 Cal.4th 300, 310.)
But there is no similarly significant likelihood that a fetus is present in a woman's body, even if the woman is of childbearing age. Therefore, although shooting a woman necessarily demonstrates a conscious disregard for human life, it does not necessarily establish a conscious disregard for fetal life.
Accordingly, we conclude that, to be convicted of the implied malice murder of a woman's fetus, the defendant must have had reason to believe that the woman was pregnant, either because the defendant had been told of this fact or because the pregnancy was physically apparent.
The People appear to rely on People v. Roberts, supra, 2 Cal.4th at pages 321-322, for the proposition that defendant Valdez was guilty of implied malice murder of Mestas's fetus because it was foreseeable that Mestas was pregnant since she was of childbearing age. But People v. Roberts is inapposite because it is a causation case, addressing whether the defendant's act of stabbing one person proximately caused that person to kill another, such that the defendant could be held liable for the death of the second person. Hence, whether it was foreseeable that the defendant's act would cause the eventual result was a critical issue. ( Id. at pp. 320-322.) Here, there is no question Valdez's act proximately caused the fetus to perish; the issue is whether the jury was misled in assessing whether he acted with the requisite malice aforethought toward the fetus.
It also appears that the People believe the verdict can be upheld on the theory of transferred intent. In the People's words: "[T]he jurors found [that Valdez] specifically intended to take human life when he shot [Mestas]. This malicious state of mind was not `used up' because Valdez may have had one specific life in mind that he intended to extinguish, i.e., the law does not limit the charges against him on a theory he intended to take one life rather than two." (Orig. italics; fn. deleted.) However, the People ignore that the charge of murdering Mestas's fetus was not prosecuted on a transferred intent theory, and the jury was not given any instructions on that theory, such as CALJIC No. 8.65. Moreover, the People provide no meaningful argument or citation to authority to support application of the transferred intent doctrine under the circumstances of this case. ( People v. Stanley (1995) 10 Cal.4th 764, 793; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [a point is asserted without any meaningful argument or citation of authority is deemed to be without foundation and requires no discussion by the reviewing court].)
Under the prosecution's theory of the case, the jurors could not convict Valdez of murdering Mestas's fetus unless they found that he acted with express or implied malice toward the fetus, i.e., he intended to kill the fetus or he killed Mestas and had reason to believe that she was pregnant, either because he had been told of this fact or because the pregnancy was physically apparent.
B
The trial court defined malice aforethought in pertinent part as follows: "Malice may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] Number one, the killing resulted from an intentional act; [¶] Number two, the natural consequences of the act are dangerous to human life; [¶] And, number three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life." (CALJIC No. 8.11.) In addition, the court told the jurors: "Murder of the second degree is also the unlawful killing of a human being when: [¶] Number one, the killing resulted from an intentional act; [¶] Number two, the natural consequences of the act are dangerous to human life; [¶] And, three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When the killing is the direct result of such an act, it is not necessary to prove that defendant intended that the act would result in the death of a human being." (CALJIC No. 8.31.)Defendant Valdez complains that these instructions did not define implied malice in terms which related specifically to the fetus. Thus, he argues, the instructions impermissibly permitted the jury to find him guilty of second degree murder of the fetus — even if he was unaware of its existence — based solely on his malice toward Mestas.
A similar contention was raised in People v. Dennis, supra, 17 Cal.4th 468, a case in which the accused was convicted of first degree murder of his former wife and second degree murder of her eight-month-old fetus. ( Id. at pp. 489, 513-515.) The contention was deemed waived due to the failure to ask the trial court for additional clarifying instructions. ( Id. at p. 514.) It also was rejected on the merits because (1) the trial court did not give a transferred intent instruction, and (2) other instructions made it plain that malice was a separate element which had to be proved for each of the two murders charged, and that a verdict of guilt as to the fetal murder required a finding the accused killed the fetus with malice aforethought. Hence, it was not reasonably likely the instructions misled jurors into thinking they could convict on both murders while finding malice aforethought only as to one victim's death. ( Id. at p. 514-515.) The decision noted "only speculation could suggest the jury thought that the malice instruction's references to `human being' and `human life' excluded the fetus." ( Id. at p. 515.)
People v. Dennis is distinguishable because in this case the prosecutor used the instructions to mislead the jury on the requirement of implied malice toward the fetus. ( People v. Hill (1998) 17 Cal.4th 800, 829 [it is improper for the prosecutor to misstate the law or to attempt to reduce the prosecution's prima facie obligation to overcome reasonable doubt on all elements; it does not matter whether the misstatement was intentional, and the defendant need not prove that it was made in bad faith ( id. at pp. 822-823)].)
The prosecutor presented the following argument to the jury. "I think the facts are strongly this: It's second degree murder on the fetus and first degree murder on Andrea Mestas. [¶] Now — and here's how we get into the — again, the second degree murder on the fetus. Murder of the second degree is also the unlawful killing of a human being with malice aforethought when the perpetrator intended to unlawfully kill a human being but the evidence is insufficient to prove deliberation and premeditation. [¶] Now, here we have an intention to kill a human being, Andrea Mestas. But there may have been no intention to kill that fetus, although the package comes as one. And you can't — and you couldn't do one without doing the other. [¶] Murder of the second degree is the unlawful killing of a human being when the killing resulted from an intentional act — and certainly the shooting of Andrea Mestas was an intentional act — the natural consequences of the act are dangerous to human life — certainly shooting anybody, especially pointblank in the heart, is dangerous to their life — and the act was deliberately performed with the knowledge of the danger to and conscious disregard to human life."
After defendant Peraza's attorney asserted that there was no evidence defendants knew Mestas was pregnant and, therefore, they did not have implied malice toward the fetus, the prosecutor responded: "You don't have to know someone is pregnant to be guilty of murder. You take your victims as you find `em. Someone could be walking down the street with a terminal disease, could be going to die this Friday and if you come up, unlawfully kill `em and murder `em, you're guilty of murder. . . . [¶] And Mr. Valdez and Mr. Peraza took their victim pregnant. And by killing one, they necessarily killed the other. That's an implied malice, easy. And if you find they knew she was pregnant or if one of `em knew she was pregnant, then it's first degree."
As a general rule, prosecutorial error is waived where, as here, no objection was made in the trial court. But there is an exception to this rule where the case is closely balanced and presents grave doubt as to the defendant's guilt, and where the prosecutor's error contributed materially to the verdict. ( People v. Bryden (1998) 63 Cal.App.4th 159, 182.) We apply this exception in this case.
The evidence that defendant Valdez knew or had reason to know that Mestas was pregnant was weak, indeed almost nonexistent. Thus, the prosecutor's erroneous statements about the applicable law made it reasonably likely that the instructions given to the jurors misled them into thinking they could convict on both murders while finding malice aforethought only as to Mestas's death.
The only evidence of such knowledge came from fellow gang member Frank Stanich, who testified that Mestas had told him she was pregnant. Stanich also claimed that he could tell she was pregnant by looking at her, which was contrary to Dr. Fitterer's observations. Even the prosecutor appeared to reject Stanich's testimony by arguing that (1) if the jury believed his impeached testimony, then a first degree murder verdict was appropriate, but that (2) in the prosecutor's opinion, a second degree murder verdict was more appropriate because all that was required was a conscious disregard of Mestas's life, regardless of whether defendants knew she was pregnant.
Consequently, defendant Valdez's conviction and sentence for the murder of Mestas's fetus, as well as the multiple murder special circumstance finding, must be reversed because it is reasonably probable that a result more favorable to him would have been reached absent the potentially ambiguous instructions and the prosecutor's misstatement of the law. ( People v. Arias (1996) 13 Cal.4th 92, 161; People v. Bryden, supra, 63 Cal.App.4th at pp. 182-183.)
We asked for supplemental briefing on whether defendant Peraza was harmed by the error. In his supplemental brief, Peraza argues he cannot be found guilty on an aiding and abetting theory for the second degree murder of the fetus because he did not have knowledge of, or reason to know, of the fetus's existence and, thus, could not have intended to facilitate and encourage the murder of the fetus. (Citing People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [an aider and abettor is liable for all offenses he intends to facilitate and encourage]; People v. Beeman (1984) 35 Cal.3d 547, 560 [defendant must share the specific intent of the perpetrator to be held liable as an aider and abettor].) Peraza acknowledges that an aider and abettor is liable not only for the offense he originally contemplated, but for all other offenses committed by the perpetrator so long as those offenses are reasonably foreseeable. ( People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5.) Nevertheless, he contends that the issue of forseeability was removed from the jury's consideration by the prosecutor's argument.
In response, the People do not contend that defendant Peraza's conviction may be upheld on an aiding and abetting theory if we reverse defendant Valdez's conviction for second degree murder of the fetus. They simply argue that Valdez's contention is without merit, no error occurred, and "Peraza's claim of similar prejudice warrants no additional response."
For reasons we already have stated, the People are wrong in asserting that no error occurred. We cannot say, as a matter of law, that the murder of the fetus was necessarily a reasonably foreseeable consequence of defendant Peraza's aiding and abetting the murder of Mestas unless he had reason to believe that she was pregnant, either because he had been told of this fact or because the pregnancy was physically apparent.
Accordingly, we must reverse Peraza's conviction for second degree murder and the multiple murder special circumstance finding.
III
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IV
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V
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VI
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VII
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VIII
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IX
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X
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XI
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XII
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XIII
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XIV
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DISPOSITION
Defendants' convictions for second degree murder of Mestas's fetus (count II) and the multiple murder special circumstance findings are reversed. In all other respects, the convictions and special findings are affirmed. The sentences are vacated, and the matters are remanded for further proceedings on count II, and for resentencing consistent with the directives in part XIV of this opinion.
We concur:
DAVIS, J.
RAYE, J.