People v. Sanchez (221 Cal. App. 4th 1012, 2013)

Opinion

KRIEGLER, J.

The victim was shot and killed following a dispute over drugs and money. Defendant, who was not alleged to be the shooter, was prosecuted on separate theories of aiding and abetting: (1) first degree felony murder committed during the course of a kidnapping and (2) second degree murder with target offenses of assault and kidnapping. In response to a jury question about the definition of second degree murder, and over defense objection, the trial court instructed the jurors they need not agree on a theory of guilt, as long as all the jurors believed defendant committed murder. The jury convicted defendant of first degree murder.

In the published portion of this opinion, we hold the trial court’s response to the jury’s question was error to the extent it (1) sanctioned a verdict that was not unanimous as to degree, and (2) advised the jury defendant, rather than the actual killer, acted with malice aforethought. We therefore reverse the conviction of first degree murder and remand to allow the prosecution to either retry defendant or accept a reduction of the offense to second degree murder.

Procedural Background

The jury found defendant and appellant Cesar Omar Sanchez guilty in count 1 of the first degree murder of Marco Antonio Parra (Pen. Code, § 187, subd. (a)), in count 2 of the attempted carjacking of Jovani Ortega (§§ 664, 215, subd. (a)), in count 3 of the second degree robbery of Ortega (§ 211), and in count 4 of possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found true allegations that defendant personally used a firearm as to counts 2 and 3 (§ 12022.53, subd. (b)).

Defendant was sentenced to 25 years to life in prison on count 1. On count 2, the trial court imposed a consecutive term of 10 months (one-third the midterm of 30 months), with an enhancement of 10 years on the firearm use allegation. With respect to count 3, defendant was sentenced to a concurrent term of one year (one-third the midterm of three years) enhanced by 10 years for use of a firearm. The court stayed sentencing on count 4

Defendant contends the trial court erroneously instructed the jury that it did not have to be unanimous as to the theory of guilt to find him guilty of murder. We agree.

In the unpublished portion of the opinion, we hold the Attorney General is correct that the sentences in counts 2, 3, and 4 were unauthorized and must be corrected. We remand the matter to the trial court for resentencing on counts 2 through 4.

FACTS

Trial Testimony Regarding the Kidnapping and Murder

Laura Ramos was in a long-term relationship with Parra, her sister Marcela was married to Danny Chavez, and her sister Martha was married to Luis Arturo Garcia. The couples were friendly with one another and interacted socially. Both Laura and Martha testified at trial under a grant of immunity.

On the morning of April 22, 2008, Martha received a call from the wife of Walter Quevedo, a friend of Garcia’s, asking about Garcia’s whereabouts. Later that morning, Garcia, sounding concerned, called Martha at work and mentioned that he and Parra had a dispute about money. A little later, Marcela called Martha and also mentioned the dispute. Marcela asked Martha to meet her at the parking lot of a shopping center on Alameda Street and Florence Avenue. Martha left work and drove her Dodge Ram to the parking lot. About 15 minutes later, Marcela arrived with Chavez and the women’s mother in a gray pickup truck. Chavez appeared very concerned and worried. He said he needed to talk to Parra to clear up an accusation by Quevedo that Parra had taken over $1 million.

After Chavez left at around 2:00 p.m., Martha called Laura, told her that there was something going on involving Parra, and asked Laura to meet her at the parking lot. About 15 or 20 minutes later, Laura arrived in her Mercedes. Martha told Laura that Chavez and Garcia were trying to get in touch with Parra, and that Parra supposedly took $1.5 million from Quevedo. Laura was shocked and called Parra to tell him about the accusation. Laura told Parra to meet them at the parking lot.

Parra arrived at the parking lot in his van about 10 minutes later and parked next to Laura’s car. He was acting normally and did not appear to be worried or angry. He got into the cab of Martha’s truck, where everyone else was sitting, and they discussed the missing money. Parra told Marcela to call Chavez. Marcela called Chavez, said Parra wanted to talk to him, and told him where they were. Parra called his cousin, “Pula,” and told him, “Some money’s missing and now they are trying to blame me.” Parra seemed very concerned about the money problem.

About 20 to 30 minutes later, Chavez arrived in his truck at the parking lot. Garcia arrived a minute later and parked his Toyota 4Runner, blocking Martha’s truck. Garcia and at least two other men got out of Garcia’s 4Runner with handguns. Parra got out of Martha’s truck and tried to run. The gunmen stopped Parra and told him to get in a car parked behind Martha’s truck. One of the gunmen had on a long-sleeved dark blue shirt.

At the same time, several men exited a gold four-door sedan parked behind Martha’s truck. Parra asked, “Why so many?” Parra called his cousin “Pula” and quickly said, “They picked me up. They picked me up.” The men walked Parra to the gold sedan. The women in Martha’s truck got out and screamed for the men to stop and leave Parra alone. Laura screamed at Garcia, “Tell them to stop. Why are they taking him like this?” Garcia looked angry and did not try to prevent the men from taking Parra.

Martha saw one person in the driver’s seat of the gold sedan. Parra was pushed into the backseat of the car. Some of the men got into the car with Parra and quickly drove away. Martha heard a gunshot coming from the car before it exited the parking lot.

Huntington Park Police detectives responding to a call of “shots fired with one down” found the dead body of Parra lying face up on the northbound lane of Albany Street. The detectives did not see anyone fleeing the scene on foot or in a car. There was blood near the body, but no trail of blood in the vicinity. Officers recovered three .45-caliber shell casings and one .45-caliber bullet at the scene. All three casings were fired from the same semiautomatic pistol. An autopsy showed that Parra died as a result of four gunshot wounds.

Postmurder Interviews

Approximately 90 minutes after Parra was taken from the parking lot, Laura went to the sheriff’s station, where she was interviewed by Sergeant Mitchell Loman. Laura said she spoke to her sisters about the missing money, and that three cars arrived at the parking lot with a “bunch of guys” after Marcela called Chavez. She described a heavy gunman with a long-sleeved blue shirt and said that Parra had been shoved into a sedan by several men. After she was informed Parra had been murdered, Laura said that Parra had been accused of taking $1.5 million from Quevedo, a truckdriver, the night before Parra’s murder. She said the money did not belong to Quevedo, but that he was transporting it. Another person was supposed to pick up the money. Parra used to collect money from Quevedo and deliver it to somebody else, but Parra had nothing to do with the missing money. Laura said Chavez and Garcia may have been dealing drugs with Quevedo.

On June 17, 2008, Martha selected Jesus Corrales from a photographic six-pack lineup as one of the gunmen who forced Parra into the sedan. She wrote on the form, “I believe this is the guy that was holding the gun. He was wearing a baseball cap.” She had never seen Corrales before the kidnapping. Martha also said there could have been three men who got out of her husband’s vehicle, but she only remembered two gunmen.

On November 20, 2008, Martha was shown other photographic six-pack lineups, which included defendant and Castrellon. Martha did not identify anyone in the lineups. Laura was also shown the six-pack lineups and selected Castrellon as one of the men involved in the kidnapping. Laura wrote on the identification form, “This guy was the one that was pushing [Parra] inside the car. He was wearing a long-sleeve, dark blue [shirt] . . . [and] was holding a gun, pointing it to [Parra]’s right side.”

In a recorded interview in November 2008, Castrellon stated that Chavez asked defendant to intimidate somebody who owed him money. Castrellon was friends with defendant, so he lent defendant his “weird caliber” semiautomatic pistol and agreed to back him up. Castrellon arrived at the parking lot in a 4Runner with defendant, Garcia, Jose Latios, and some others. A gold Camry also arrived at the scene, and someone got out of the Camry with a gun. Castrellon said defendant was pushed into the Camry with Parra. Castrellon left the scene with Chavez.

In another interview on December 9, 2008, Castrellon mentioned that defendant had been placed in a cell with him and told him not to talk to law enforcement about the incident. Castrellon then stated that on the night before the shooting, he, Chavez, Garcia, Quevedo, Latios, defendant, and others were at a house in Compton. The group went to Quevedo’s truck yard to look for the missing money and “dope.” Latios had his arms broken in connection with the missing money. Castrellon said that Garcia gave him the gun that was recovered from Ortega’s van. Castrellon went to the parking lot on the day of the shooting believing there was going to be a meeting to get the missing money. He thought he was acting as backup at the meeting. After they arrived at the parking lot, Corrales, who had a .45-caliber gun, pushed Parra and defendant into the Camry. Defendant later called Castrellon and told him Corrales shot Parra in the arm inside the car and then shot Parra again outside the car, and “the drug cartel” was involved in the incident.

Testimony Regarding Counts 2 Through 4 and Additional Scientific Evidence

At approximately 3:10 p.m. on the day of Parra’s murder, Ortega was sleeping in his van, which was parked in front of a tow yard in Huntington Park. Defendant entered his van with a gun, pointed it at Ortega’s head, and told Ortega to get him out of there. Ortega said the keys were in the ignition, and that he could take the van. Defendant told Ortega to take off his shirt. Defendant removed two shirts and put on Ortega’s shirt. Defendant then left the van and walked away, leaving a white shirt, a blue shirt, and a gun in the back of the van.

Detectives recovered a white long-sleeved T-shirt, a blue checkered long-sleeved dress shirt, and a functional handgun from the back of Ortega’s van. There were eight live rounds in the gun’s magazine. The gun was “kind of rare” and incapable of firing .45-caliber ammunition. The white shirt was sweaty with holes in it. The blue shirt was not damaged.

A criminalist later found bloodstains on the sleeves of both shirts. DNA testing showed that Parra was a “possible contributor” to the DNA found on the blue shirt. The DNA profile from the white shirt exactly matched Parra’s DNA profile. Defendant was a “possible contributor” to the DNA mixture found on the grip of the handgun. Castrellon’s DNA profile matched the profile found on the slide hammer of the gun. Defendant’s DNA profile exactly matched the profile obtained from the neck area of the white shirt. Defendant was a “possible contributor” to the DNA mixture found on the neck area of the blue shirt. Parra and Castrellon were not contributors to this DNA sample.

DISCUSSION

A. Claim of Erroneous Jury Instructions on Murder

At the prosecution’s request, the trial court instructed the jury on two theories of murder: (1) first degree felony murder if Parra was killed during the commission or attempted commission of a kidnapping that defendant committed, attempted, or aided and abetted and (2) second degree murder if the murder was the natural and probable consequence of an assault or a kidnapping. In a portion of its response to a jury question during deliberations on the definition of second degree murder, the jurors were instructed pursuant to Judicial Council of California, Criminal Jury Instructions, CALCRIM No. 548: “You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory.” (Italics added.)

Defendant contends the trial court’s instruction expressly negating the need for juror unanimity as to the theory of guilt was error. Defendant reasons the prosecution’s two theories of murder supported different degrees of murder, and juror unanimity was therefore required as to the theory of guilt. If the jury followed the instruction, defendant argues that all the jurors may have agreed defendant committed murder, but it cannot be determined whether the jurors unanimously agreed defendant committed first degree murder. This is correct.

B. Discussion of Jury Instructions Between the Trial Court and Counsel

The prosecutor produced a working set of jury instructions, which were finalized after discussion between the trial court and counsel. From the outset, there were disputes over the instructions relating to the natural and probable consequences theory of liability.

Defendant’s counsel expressed the view that instructions on the natural and probable consequences doctrine were unnecessary, because the prosecution case, if believed, established a first degree felony murder based on aiding and abetting a kidnapping. The prosecutor proposed aiding and abetting instructions, including the concept of natural and probable consequences, identifying attempted robbery, kidnapping, and assault as possible target offenses. The trial court stated it felt the natural and probable consequences instruction was proper based on attempted robbery and kidnapping as target offenses. Defense counsel pointed out attempted robbery and kidnapping would support a first degree felony-murder conviction and identifying those crimes as target offenses was unnecessary. The court replied, “I’m going to give it.”

After further discussion, the trial court ruled there was insufficient evidence to support instructing on attempted robbery as a target offense under the natural and probable consequences doctrine. The court agreed to the prosecutor’s request to include “assault or kidnapping” as target offenses in the instruction.

When the discussion turned to the felony-murder instructions, the prosecutor acknowledged that the jury could return a verdict of second degree murder based on murder being a natural and probable consequence of an assault, and that the case did not necessarily involve only first degree murder. He suggested the jury be allowed to convict defendant of either first or second degree murder, “depending upon what theory of culpability they agree on unanimously” (italics added).

Defense counsel repeated his objection to the instruction on natural and probable consequences. The trial court stated, “They are two separate, distinct offenses.”

There was no specific discussion regarding an instruction defining second degree murder. The jury was provided guilty and not guilty verdict forms for first and second degree murder.

C. Initial Instructions to the Jury Provided by the Court and Arguments of Counsel

The trial court instructed the jury pursuant to CALCRIM Nos. 400 and 401 on aiding and abetting generally. The court instructed the jury with respect to the natural and probable consequences doctrine with CALCRIM No. 403, identifying “kidnapping or assault” as the target offenses.

The trial court instructed the jury on murder generally, stating the jury had to decide whether the killing was unlawful and if so, what specific crime was committed. (CALCRIM No. 500.) The court then instructed the jury on felony murder under CALCRIM No. 540B, identifying only kidnapping as the underlying felony.

The trial court also instructed that a conviction for felony murder required a finding that the kidnapping and the act causing death be part of one continuous transaction, which included the jury’s consideration of whether the death was a natural and probable consequence of the kidnapping. (CALCRIM No. 549.) The jury was given instructions on the elements of both kidnapping and simple assault. (CALCRIM Nos. 1215 & 915.)

In closing argument, the prosecutor outlined the two theories available to convict defendant and Castellón of murder: (1) conviction of first degree felony murder if defendants were involved in a kidnapping and Parra was killed during the kidnapping and (2) conviction of second degree murder if the jury did not find there was a kidnapping, but instead found defendant and Castellón were present to assault Parra in order to obtain the missing drugs and money, and Parra’s murder was a natural and probable consequence of the assault. The prosecutor emphasized that the jury had to agree unanimously as to the degree of murder to convict: “It doesn’t matter what theory you use to get to a degree as long as you all agree unanimously—all 12 of you agree—on what degree you fix the murder at.” In his closing argument, defense counsel conceded that, if defendant was guilty of kidnapping murder, he could only be guilty of first degree murder.

After closing arguments, the trial court instructed the jury with respect to the deliberations and the verdict forms, pursuant to CALCRIM 640. The instruction detailed the procedure for the jury to follow in considering the various possible verdicts.

D. Jury Question Regarding Second Degree Murder and Further Instructions

Following instructions, the jury deliberated for about an hour on April 26, 2012. During deliberations on April 27, the jury sent a note to the trial court requesting clarification: “We need more [information] on the [difference between first and second] Degree Murder, [f] Page 37 state[s] what [first] Degree is But what is [the definition] of [second] Degree.”

Upon receipt of the jury’s query, the trial court realized it had instructed on the natural and probable consequences doctrine but had not explained to the jury that the natural and probable consequences doctrine was the basis for a second degree murder conviction. In a discussion outside of the jury’s presence on the morning of April 30, the court acknowledged the omission and stated that it planned to answer the jury’s questions with CALCRIM Nos. 548 (Murder: Alternative Theories) and 520 (First or Second Degree Murder With Malice Aforethought), which were proposed by the prosecution.

Defense counsel objected to the last sentence of CALCRIM No. 548 [“You do not all need to agree on the same theory.”], on the basis that it could confuse the jury into believing it did not have to unanimously agree on the felony-murder/kidnapping theory to find defendants guilty of first degree murder. The trial court overruled the objection, reasoning the jury had been clearly instructed that the verdicts were required to be unanimous and instructed as follows pursuant to CALCRIM No. 548: “The defendants have been prosecuted for murder under two theories: (1) malice aforethought, and (2) felony murder. [][] Each theory of murder has different requirements, and I will instruct you on both. [][] You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory.” (Italics added.)

The trial court also instructed the jury on the elements of malice aforethought under CALCRIM No. 520, as follows: “The defendants are charged with murder in violation of Penal Code section 187. To prove that the defendant is guilty of this crime, the People must prove that: [][] 1. The defendant committed an act that caused the death of another person; [f] 2. When the defendant acted, he had a state of mind called malice aforethought; [][] AND [f] 3. He killed without lawful excuse or justification, [f] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [][] The defendant acted with express malice if he unlawfully intended to kill, [f] The defendant acted with implied malice if: [