People v. Fiu (165 Cal. App. 4th 360, 2008)

Opinion

SEPULVEDA, J.

Defendant Fiu was convicted by jury trial of second degree murder (Pen. Code, § 187), and of conspiracy to commit assault with force likely to cause great bodily injury. (§§ 182, subd. (a)(1), 245, subd. (a)(1).) A gang enhancement was found true as to each crime. (§ 186.22, subd. (b)(1).) He was also convicted of street terrorism (§ 186.22, subd. (a)) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)). One prior strike was found true in a bench trial, and the court sentenced defendant to 40 years to life in state prison. (§§ 187, 667, subds. (b)-(i), 1170.12.) Defendant argues on appeal that the trial court erred by failing to instmct the jury on the theory of supervening cause, by shifting the burden of proof to defendant on the question of withdrawal by an aider and abettor, and by failing to dismiss the grand jury indictment for insufficient probable cause. Defendant also contends that the trial court erred in admitting and instructing upon the predicate felonies needed to prove a pattern of criminal gang activity required for the gang enhancements, and erred in imposing a consecutive 10-year term for the gang enhancement. Finally, defendant claims he was denied a fair trial as a result of racially discriminatory jury selection. We accept respondent’s concession as to the consecutive 10-year term on a gang enhancement and order the abstract of judgment to be corrected accordingly. In all other respects, we affirm.

BACKGROUND

According to testimony given at trial, on the night of July 24 and in the early morning hours of July 25, 2003, defendant Neal Fiu and four teenage members (Daniel G. (Danny), Joey O., Sammy V., and Brandon V.) of the street gang Sons of Death (SOD) were on defendant’s front porch, drinking alcohol. Also present were Javier Cervantes (Javi) and Juan Cervantes (Juan). Defendant was a longtime member of SOD and, according to Danny G., commanded respect from the young members.

While they were sitting on the porch, Salvador Espinoza walked past; he cursed, yelled the name of a rival gang, and threw a gang sign. Taking this as a challenge, defendant and the four teenagers approached Espinoza. After Brandon V. pushed Espinoza, Danny G. pulled out a .38-caliber weapon and aimed it at Espinoza’s face. Defendant told him not to shoot, saying they should beat up Espinoza instead. Espinoza tried to escape, but was caught and thrown to the ground. The teenagers and defendant punched and kicked Espinoza in the head and body until he lost consciousness. The group left Espinoza lying on the ground, apparently still alive, and everyone returned to the porch to continue drinking.

Shortly thereafter, Ezekiel Johnson arrived at the house. At this point, defendant was either inside his house or in the backyard. The teenage gang members took Johnson to where Espinoza was lying, and Johnson said that he wanted to kill him. The four teenagers resumed kicking Espinoza. Javi smashed Espinoza’s head against a parked car. Johnson put a milk crate over Espinoza’s neck and jumped on it. Finally, Johnson and Joey O. stabbed Espinoza in the neck at least twice. Afterward, Johnson and Javi went into the house to wash blood from their hands. Johnson then drove the four young gang members to the home of Danny G.’s mother. She washed the blood from their clothes.

The grand jury returned an indictment charging defendant with murder (§ 187—count 1), conspiracy to commit murder, robbery, and assault with force likely to cause great bodily injury (§§ 182, subd. (a)(1), 187, 211, 245, subd. (a)(1)—count 2), and street terrorism (§ 186.22, subd. (a)—count 3). The indictment alleged that defendant committed the first two counts for the benefit of a street gang (§ 186.22, subd. (b)(1)), and that he had two prior strikes, pursuant to sections 667, subdivisions (a) to (i), and 1170.12. A jury found defendant guilty of second degree murder, conspiracy to commit assault with force likely to cause great bodily injury, and street terrorism. The jury found true the allegations that the first two counts were committed for the benefit of a street gang. Defendant admitted one strike allegation. The court dismissed the second strike allegation (pursuant to stipulation of the parties), and sentenced defendant as follows: murder, 15 years to life, doubled to 30 years to life due to the prior strike, plus 10 years for the first gang enhancement (§ 186.22, subd. (b)(1)), totaling 40 years to life. Sentences on counts 2 (including the second gang enhancement) and 3 were stayed pursuant to section 654. Defendant timely appealed.

DISCUSSION

A. Failure to Instruct on Supervening Cause.

Defendant contends that the trial court erred as it failed to instruct, sua sponte, on supervening cause. Because Johnson came along some 10 to 15 minutes after defendant’s participation in the initial attack on the victim, and again attacked the victim (without defendant’s participation), defendant argues that the court should have instructed the jury on superseding intervening cause.

The trial court instructed with a modified version of CALJIC No. 3.40, which discusses causation, as follows: “To constitute the crime of Murder or Manslaughter there must be in addition to a death of a human being an unlawful [act] [or] [omission] which was a cause of that death. Q] The criminal law has its own particular way of defining cause. A cause of death is an [act] [or] [omission] that sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] [omission] the death in question and without which the death would not occur.” (Italics added.) The court also instructed with CALJIC No. 3.41, which discusses concurrent causation and provides, “There may be more than one cause of death. When the conduct of two or more persons contributes concurrently as a cause of death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death.” These instructions on causation, defendant argues, were insufficient as Johnson’s actions could have been found by the jury to be a superseding intervening act which broke the chain of causation; under those circumstances defendant’s acts would not be the proximate cause of the victim’s death. The failure to properly instruct on proximate cause, defendant claims, violated the federal due process clause and requires reversal under the Chapman standard. We disagree.

First, the lack of amplifying language was waived by defendant’s failure to request it below. “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024 [264 Cal.Rptr. 386, 782 P.2d 627].) This concept is aptly demonstrated in People v. Alvarez (1996) 14 Cal.4th 155, 221-222, and footnote 27 [58 Cal.Rptr.2d 385, 926 P.2d 365], a homicide case in which the trial court did not instruct on causation pursuant to either CALJIC No. 3.40 or No. 8.55. Defendant claimed on appeal that the trial court erred by failing to do so. The California Supreme Court held that the trial court had adequately instructed on proximate cause as it required that the perpetrator kill the victim, thereby requiring the act to cause the death. Defendant contended that the trial court should have amplified this instruction by referring to and explaining proximate cause, by use of the CALJIC pattern instruction, CALJIC No. 8.55. The court held, “Had he desired such an amplification, he should have requested it of the superior court. He made no request of this sort.” (Alvarez, supra, at p. 222.)

Defendant claims, however, that the court was required to instruct on supervening cause, sua sponte. “In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585 [102 Cal.Rptr.2d 254].) A court is required to instruct on the law applicable to the case, but no particular form is required; the instructions must be complete and a correct statement of the law. (Ibid.) The meaning of instructions is tested by “whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276 [107 Cal.Rptr.2d 160].) “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.]” (People v. Burnett (2003) 110 Cal.App.4th 868, 875 [2 Cal.Rptr.3d 120].) Thus, absence of an essential element in a given instruction may be supplied by reference to another instruction, or cured in light of the instructions considered as a whole. (Ibid.)

A “cause of [death] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the [death] and without which the [death] would not occur.” (CALJIC No. 3.40.) Even if the death occurs in an unanticipated manner, a defendant is still liable unless a superseding intervening act breaks the chain of causation. “To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence. [Citation.] The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act.” (People v. Crew (2003) 31 Cal.4th 822, 847 [3 Cal.Rptr.3d 733, 74 P.3d 820] (Crew).) Worded differently, “ ‘[W]here [an] injury was brought about by a later cause of independent origin . . . [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the [victim]; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the [crime].’ ” (Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210 [186 Cal.Rptr. 847], original italics; see also People v. Brady (2005) 129 Cal.App.4th 1314, 1326 [29 Cal.Rptr.3d 286].) As the California Supreme Court explained in People v. Cervantes, supra, 26 Cal.4th at page 871, “ ‘ “If an intervening cause is a normal and reasonably foreseeable result of defendant’s original act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve defendant of liability. [Citation.] ‘. . . The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . . The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.’ [Citation.]” ’ ” To break the chain of causation, the intervening act must be an “ ‘ “unforeseeable . . . extraordinary and abnormal occurrence.” ’ ” (Ibid.)

There are no standard CALJIC instructions on superseding intervening acts; when appropriate, corollary civil instructions on this aspect of causation may be used. (People v. Brady, supra, 129 Cal.App.4th at p. 1328.) Defense counsel below did not request such clarifying instructions, nor were any given by the court. While we agree with defendant that causation instructions must be given sua sponte if called for under the facts of the case (People v. Bland (2002) 28 Cal.4th 313, 334-335 [121 Cal.Rptr.2d 546, 48 P.3d 1107]), we do not agree that the instructions given in the present case were lacking. CALJIC No. 3.40 correctly indicates, in essence, that liability would not be cut off for an intervening act if the victim’s death was nevertheless a “direct, natural and probable consequence” of defendant’s original act. (CALJIC No. 3.40.) People v. Temple (1993) 19 Cal.App.4th 1750, 1754-1756 [24 Cal.Rptr.2d 228] held this instruction to be an adequate statement of the law, without need to amplify (even upon request) with “reasonable foreseeability” language. The court noted a lack of any such requirement in Supreme Court precedent, so long as jurors were not instructed to disregard foreseeability. (Id. at p. 1755-1756.) Implicit in Temple's reasoning is an assumption that foreseeability is an important component of causation, but that the language in CALJIC No. 3.40 requiring an injury or death to be a direct, natural, and probable consequence of a defendant’s act necessarily refers to consequences that are reasonably foreseeable. We concur with this analysis. The Supreme Court has cited Temple with approval, noting that the CALJIC instructions, as given here, conform to its precedent faulting earlier versions that used the term “proximate” cause. (People v. Bland, supra, 28 Cal.4th at pp. 334-335.) The high court thus appears to have endorsed the “natural and probable” language of CALJIC No. 3.40. (See People v. Roberts, supra, 2 Cal.4th at pp. 321-322 [if victim’s eventual death not natural and probable consequence of defendant’s act, liability cannot attach].)

Thus, the instructions given were a correct statement of the law. Further, the instructions were responsive to the evidence. Under the facts of the present case, defendant encouraged several other gang members to beat the victim, and participated in his beating. When the victim attempted to flee, they chased him around the comer from defendant’s residence, where they caught him and administered the beating. They left the victim lying unconscious on the ground, around the comer from defendant’s house. When Johnson came by 10 to 15 minutes later, the young gang members showed Johnson where the victim was lying. Johnson began to kick the victim and put a milk crate on the victim’s neck and jumped on it. The young gang members participated in the further assault on the victim and the group removed the victim’s clothes and shoes. Johnson stabbed the victim twice in the neck. Defendant was not out front, but at some point he told Johnson not to kill the victim. The autopsy surgeon testified that the knife wounds inflicted upon the victim were not a cause of his death. The cause of death, according to the autopsy surgeon, was blunt force trauma to the head. There was bleeding inside the victim’s head and swelling of his brain, due to multiple impacts to his head. Death resulted from a combination of blows; no one single blow was severe enough to do all of the damage. There were at least a half-dozen separate blows to the victim’s head which combined to cause his death. No single blow was sufficient to cause death by itself.

There was no superseding intervening act. Whether or not Johnson’s arrival and actions were themselves foreseeable, the death of the victim due to beating was. Once defendant and the young gang members beat the victim severely, rendering him unconscious and leaving him lying outside, around the comer from defendant’s residence, it was not unforeseeable that he might die due to their actions or the type of injuries they inflicted. Further, defendant left the young gang members, at least one of whom had behaved as though he intended to kill the victim (by shooting him) on his porch drinking. He left the injured victim in proximity to these individuals, and at their mercy. That someone, whether Johnson or one of the gang members, would again assault the victim was certainly foreseeable. Assuming the specific acts of Johnson were not themselves foreseeable, the type of harm or injury which they caused (to the extent they contributed at all to the victim’s death) was certainly foreseeable. “The consequence need not have been a strong probability; a possible consequence that might reasonably have been contemplated is enough. . . . The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind that might result from his act. [Citations.]” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 41, p. 247.) Blows to the head, similar to those inflicted by defendant and the young gang members initially, caused the victim’s death. This type of harm was clearly foreseeable; no reasonable jury could have found that it was not. (Crew, supra, 31 Cal.4th at p. 847.) The victim’s death was a natural and probable consequence of defendant’s actions. (People v. Roberts, supra, 2 Cal.4th at p. 320, citing Model Pen. Code, § 2.03, subd. (2)(b) [“when purpose or knowledge of a result is an element of an offense, the actor is not liable for an unintended or uncontemplated result unless, as relevant here, ‘the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a . . . bearing on the actor’s liability or on the gravity of his offense’ ”].)

Additionally, “any error was harmless under any standard because here it is clear beyond a reasonable doubt that a rational jury would have found defendant guilty absent any error. [Citation.]” (Crew, supra, 31 Cal.4th at p. 847.) As the court in Crew explained in response to the defendant’s argument that the standard CALJIC homicide proximate cause instruction (CALJIC No. 8.55) created a mandatory presumption, precluding consideration of intervening causes, “Not so. When there is an intervening cause, the initial cause is not one that continues to operate in a natural and continuous sequence.” (Crew, supra, at p. 847.) Similarly here, had there been any supervening act, the victim’s death would not have been produced “as a direct, natural and probable consequence” of a chain of events set in motion by defendant’s actions. CALJIC No. 3.40 adequately conveys this concept. Since Johnson’s acts, or at least the harm they caused, were foreseeable, the victim’s death was a direct, natural, and probable consequence of defendant’s actions. Further, “[e]ven if [Johnson]’s actions could be described as an independent intervening cause of [the victim]’s death, they would relieve defendant of criminal liability only if the jury found that [defendant’s action] was not a concurrent cause of [the victim’s] death.” (Crew, supra, at p. 847.) As the court explained in Pappert v. San Diego Gas & Electric Co., supra, 137 Cal.App.3d at page 211, “ ‘Numerous cases have declared that if the defendant’s conduct exposes persons in the class to which [the victim] belongs to a foreseeable risk of injury, and his act or omission contributes substantially to injury of that nature actually occurring, he may be held liable notwithstanding the fact that an unforeseeable independent intervening act is a concurring cause.’ [Citations.]”

The facts of the Crew case are instructive. The defendant told a friend that he took his wife into the woods, shot her in the back of the head, rolled her body down a ravine, and covered it with blankets. The next evening, the defendant and another friend drove to where defendant had left the body; the body “had moved.” (Crew, supra, 31 Cal.4th at p. 831.) The defendant became upset and ran back to the truck they had driven to the location. His friend went down the ravine and tried to strangle the victim and break her neck. He ultimately cut off her head. The defendant and his friend later put the victim’s body in a 55-gallon drum filled with cement and buried it in the friend’s backyard. They put her head in a five-gallon bucket filled with cement and threw it off the Dumbarton Bridge. The court instructed the jury with CALJIC Nos. 3.40, 3.41, and 8.55. On appeal, the defendant argued that the trial court erred by not instructing the jury that his friend’s actions in strangling the victim and cutting off her head could be an independent intervening act that broke the causal connection between the defendant’s shooting of the victim and her death. The Supreme Court rejected this argument, stating that “[t]he defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act.” (Crew, supra, at p. 847.) The court found that a jury could not possibly have found that the defendant’s friend’s attempt to make sure the victim was dead was unforeseeable. The court further found that any error was harmless under any standard, because even if the defendant’s friend’s actions were independent intervening causes of the victim’s death, that would relieve the defendant of criminal liability only if the trier of fact found that his act of shooting the victim in the head was not a concurrent cause of her death. (Ibid.) Similarly here, even if Johnson’s acts were an independent intervening cause of the victim’s death, they would relieve defendant of liability only if defendant’s actions in beating the victim and kicking him in the head were not a concurrent cause of his death.

In addition to the standard causation instructions given, as previously indicated, the trial court here also instructed on aiding and abetting (CALJIC No. 3.02), as follows: “One who aids ánd abets another in the commission of a crime is not only guilty of that crime but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [][] In order to find the defendant in this case guilty under this principle of the crime of murder as charged in Count One or the lesser included crimes of attempted murder or manslaughter, you must be satisfied beyond a reasonable doubt that: [f] . . . [j[] 1, the crime of assault with force likely to cause great bodily injury and/or the crime of robbery, was committed; 2, that the defendant aided and abetted the—that crime or crimes; 3, that a co-principal in that crime or crimes committed the crime of murder, attempted murder or manslaughter; and 4, that such crime was a natural and probable consequence of the commission of a crime of assault with force likely to produce great bodily injury and/or the crime of robbery. [j[] In determining whether a consequence is a natural and—is natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. [