APPEALS from judgments of the Superior Court of Los Angeles County. Richard H. Kirschner, Judge. Reversed. (Los Angeles County Super. Ct. No. LA 049659).
The opinion of the court was delivered by: Rothschild, J.
CERTIFIED FOR PUBLICATION
Richardo Martinez and Jesse Martinez appeal from their convictions on two counts of murder and one count of attempted murder.*fn1 The trial court instructed the jury that it could find Richardo and Jesse guilty of the murders and the attempted murder if the jury found that (1) they aided and abetted a breach of the peace or a misdemeanor assault and (2) the murders and the attempted murder were "natural and probable consequences" of the crimes that they aided and abetted.
On appeal, Richardo and Jesse argue that the trial court erred by so instructing the jury because the record does not contain substantial evidence that the murders and the attempted murder were natural and probable consequences of the alleged breach of the peace or the alleged misdemeanor assault. We agree, and we further conclude that it is reasonably probable that Richardo and Jesse would have obtained a more favorable result were it not for the trial court's error. We therefore reverse.
The amended information charged Richardo, Jesse, and a third codefendant, Saul Rivera, with the murders of Miguel Zapata (count 1) and David Zapata (count 2) in violation of Penal Code section 187, subdivision (a),*fn2 and with the attempted murder of Edwin Leiva in violation of section 187, subdivision (a), and section 664 (count 3). The information alleged with respect to all counts that the murders and the attempted murder were willful, deliberate, and premeditated within the meaning of section 664, subdivision (a), and were serious felonies within the meaning of section 1192.7, subdivision (c). It further alleged with respect to counts 1 and 2 the special circumstances of multiple murders (§ 190.2, subd. (a)(3)) and that the murders were intentional killings committed by the defendants while they were active participants in a criminal street gang and for the purpose of furthering the activities of the gang (§ 190.2, subd. (a)(22)). As to all counts and all defendants, the information alleged that a principal personally used a firearm, personally and intentionally discharged a firearm, and personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b), (c), (d), and (e)(1)), and that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
Richardo and Jesse pleaded not guilty and denied the allegations. Their trial was severed from Rivera's. A jury found both Richardo and Jesse guilty on all counts and found all allegations true except (1) the intentional killing by a gang member special circumstance was found not true as to both Richardo and Jesse, and (2) the multiple murders special circumstance was found true as to Jesse but not true as to Richardo.*fn3
The trial court sentenced Richardo to 50 years to life on count 1, consisting of 25 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court imposed an identical sentence of 50 years to life on count 2, to run concurrently with the sentences on counts 1 and 3. The court imposed a sentence of 25 years to life on count 3, to run concurrently with the sentences on counts 1 and 2. The court also ordered victim restitution of $9,876.30 (§ 1202.4, subd. (f)), imposed a restitution fine of $2,000 (§ 1202.4, subd. (b)), and imposed but stayed a parole revocation fine of $2,000 (§ 1202.45). The court credited Richardo with 632 days of presentence custody.
The trial court imposed identical sentences and fines on Jesse except that the sentences on counts 1 and 2 are to run consecutively, giving Jesse an aggregate term of 100 years to life. The court also credited Jesse with 632 days of presentence custody.
The evidence introduced at trial showed the following facts:*fn4 On February 2, 2005, at roughly 5:30 p.m., George Ortega was seated outside at a Wienerschnitzel restaurant in Canoga Park. His girlfriend Lisa Anderson and his friends David Zapata, Miguel Zapata, and Edwin Leiva were with him; some were seated, while others were standing. Ortega was a member of a street gang, the Vanowen Street Locos. David and Miguel were members of the Temple Street gang.
At some point, Richardo came out of a store across the street, crossed to the Wienerschnitzel, and walked past the tables and then back again, fixing Ortega's group with a disrespectful stare that Ortega interpreted as a challenge. Richardo walked away and conferred briefly with Jesse and Rivera, who had just come out of the same store and crossed the street. Richardo, Jesse, and Rivera then came toward Ortega's group. Ortega testified that Rivera approached Miguel and asked him, "Where are you from?" (meaning, in this context, "What gang do you belong to?") Miguel responded by identifying the gang of which he was a member, "Temple Street." Rivera replied "Fuck Temple" and identified his own gang as "Canoga Park," while Richardo and Jesse stood behind him and made hand signals indicating that they too were members of the Canoga Park Alabamas street gang. Ortega stood up and stated his own gang affiliation as "Calle Vanowen" (Spanish for "Vanowen Street"). Rivera then pulled out a handgun and "started shooting." During the shooting, Richardo and Jesse continued to make hand signals indicating they were Canoga Park Alabamas.
Miguel and Leiva ran. David was shot where he sat, and he fell to the ground. Gunfire shattered the window of a nearby restaurant as Leiva ran past it. Ortega jumped over some bushes, dropped to the ground, and "played dead." After the shooting stopped, Rivera, Richardo, and Jesse fled the scene. Ortega approached David and found that he had been shot in the head. Miguel went to the cashier of the Wienerschnitzel and asked that someone "call the cops"; then he collapsed. The medical examiner testified that David died from a gunshot wound to the head. Miguel died from a gunshot wound to his torso; he suffered three additional gunshot wounds to various parts of his body.
In its case in chief, the prosecution presented four expert witnesses on criminal street gangs: Ortega and police officers Steve Park, Foster Rains, and Joshua Lukaszewski, all of whom were assigned to the Los Angeles Police Department's west valley division, which includes Canoga Park. After the prosecution rested, the defense presented its own gang expert, Roberto Lacarra. The prosecution then presented one more gang expert, police officer Gary Nanson, in rebuttal. Nanson oversees the west valley division, among others.
Ortega testified that (1) disrespectful staring and other gang challenges "most likely" lead to "an argument or a fist fight"; (2) in the circumstances of this case, he thought the "Where are you from?" challenge was going to lead to a fist fight; (3) he "didn't expect" a gun to be used, "didn't think there was going to be any kind of shoot-out," and "felt startled" when the gun was drawn; and (4) when Rivera took out the gun, Richardo and Jesse looked "startled and surprised" too.*fn5
Park testified that (1) in the majority of gang-related violent crimes he investigates, the violence is preceded by the words "Where are you from?"; (2) "many" of those confrontations end in murder, and the sequence from "Where are you from?" to murder forms "a common or a classic pattern;" (3) he does not keep any statistics concerning what was said just before a shooting or murder; (4) he estimated that in the last four years he has investigated 10 to 15 crimes in which "one group walks up to another group, face-to-face," asks "Where are you from?", and then fires at the group "when they say where they're from"; (5) gang members pose the challenge "Where are you from?" probably 2,000 to 3,000 times each year; (6) in the four years that he has been working in the west valley division, he recalls perhaps three or four fist fights that escalated into shootings, but none in Canoga Park.
Rains, who is a homicide detective, testified that (1) "the majority of the murders" he has investigated were preceded by a "Where are you from?" challenge; (2) "from my experiences, a large majority of the ones that are challenged, at least from West Valley that I've been working, have led to shootings and major injuries, attempt murders[, and murders]"; (3) in the west valley, there were approximately fifteen murders in 2005, of which approximately ten were gang related; (4) gang challenges are "common" and "probably" happen several times each day; (5) the Los Angeles Police Department does not keep statistics on how often "Where are you from?" challenges occur; and (6) Rains could only "guess" at how many occur in the course of a year.
Lukaszewski testified that (1) when a member of a rival gang or any other gang enters the Canoga Park Alabamas' territory, "[a]nything could happen, up to nothing, up to a killing"; (2) gang challenges "often lead to violence"; (3) the challenge "Where are you from?" "usually" leads to "some sort of violence or some type of confrontation," and he has "been involved in numerous investigations where those very words led to murder"; (4) the fact pattern in this case-in which one gang member first walks past the victims, stares disrespectfully, and then meets up with two fellow gang members, and the three then approach the victims, ask where they are from, insult them, and then draw a gun and open fire-is a "common" and "typical" "type of gang confrontation"; and (5) gang members "almost always" "bring weapons with them" when they confront suspected rival gang members, and failure to do so "could be" a "suicide mission."
Lacarra testified for the defense that (1) when gang members fight, it is "not likely" that a weapon will be used; (2) "Where are you from?" challenges occur in the valley "5, 10, 20 times a day" "at a minimum," and the total in one year could "easily" be 10,000 and is "probably" more like 20,000; (3) a "very low percentage" of them result in murder; (4) a confrontation like the one in this case-including the disrespectful staring, the "Where are you from?" challenge, and the insulting response to Miguel's identification of his gang-"usually" results in a fist fight, and "it's rare" for such a confrontation to result in either assault with a deadly weapon or murder; (5) over a five-year period, there have been an average of 175 gang-related murders in the valley per year; and (6) not every member of a gang knows every other member, so a gang member might ask "Where are you from?" and find out that the person is a member of his own gang.
Nanson testified in rebuttal that (1) most of the gang assaults and homicides that his personnel investigate were "precipitated" by "Where are you from?" challenges; (2) in 2004, there were 42 "gang homicides" in the valley, and there were 38 in 2005; (3) "most gang members" in a gang the size of the Canoga Park Alabamas "tend to know one another"; (4) it is "possible" for a gang member to ask "Where are you from?" and find out that the person is a member of his own gang; and (5) when a member of a different gang comes into the neighborhood of a territorial gang like the Canoga Park Alabamas, "what would logically happen" is "violent confrontations."
In their postarrest interviews (tapes of which were played for the jury), both Richardo and Jesse identified Rivera as the shooter. Richardo claimed that he, not Rivera, was the one who asked Ortega's group where they were from and responded "Fuck Temple Street" when Miguel stated his gang affiliation. Jesse admitted approaching Ortega's group with Rivera. Richardo denied knowing that Rivera was carrying a gun. Jesse said he "was scared someone was going to take out a gun." When asked "[W]ho? The other guy?", he responded "Anybody. I'm scared. Because I was right there." Jesse said nothing indicating that he had reason to believe Rivera was armed on the night in question, but he admitted having handled Rivera's gun one week earlier.
The prosecution sought to convict Richardo and Jesse on either of two alternative theories, both of which were covered by the trial court's instructions to the jury.*fn6 First, the prosecution argued that they were guilty as aiders and abetters of both the murders and the attempted murder because they acted with the intent or purpose of encouraging or facilitating their commission. Second, the prosecution argued that if Richardo and Jesse did not intend to encourage or facilitate murder or attempted murder, they were still guilty as aiders and abetters because the murders and the attempted murder were natural and probable consequences of any one of four other offenses that, the prosecution argued, Richardo and Jesse did intentionally encourage or facilitate, namely, (1) disturbing the peace, (2) assault, (3) assault with a deadly weapon, and (4) assault with force likely to produce great bodily injury. For reasons we explain in Part II, post, it appears that the jury convicted Richardo and Jesse on the basis of a natural and probable consequences theory.
The trial court errs if it instructs the jury on a theory of liability that is not supported by substantial evidence. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Richardo and Jesse argue that the trial court erred when it included disturbing the peace and simple assault as target crimes in the instruction on aider and abettor liability for natural and probable consequences, because "murder is not a natural and probable consequence of misdemeanor assaults or breaches of the peace." On the evidentiary record in this case, we agree.
As a threshold matter, respondent argues that both Richardo and Jesse waived the error by agreeing to the instruction at issue. We disagree.
During the prosecution's case-in-chief, Richardo objected to the inclusion of breach of the peace and simple assault in the list of target crimes in the natural and probable consequences instruction. After the prosecution rested, both Richardo and Jesse moved for judgment of acquittal on the ground that the record contained insufficient evidence that murder was a natural and probable consequence of simple assault or breach of the peace. The trial court denied the motion. Thereafter, the defense and the prosecution agreed to the natural and probable consequences instruction that was ultimately given to the jury.
Respondent cites no authority for the proposition that when a defendant agrees to an instruction after unsuccessfully objecting to it and unsuccessfully moving for judgment of acquittal on the ground that the instruction is unsupported by substantial evidence, the defendant waives the issue. We are aware of no such authority, and there is ample authority to the contrary. (See, e.g., People v. Viramontes (2001) 93 Cal.App.4th 1256, 1264 [no invited error when defense counsel initially opposes but ultimately acquiesces in trial court's ruling]; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213; Horsemen's Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1555; Williamson v. Pacific Greyhound Lines (1949) 93 Cal.App.2d 484, 487-488.) Moreover, because the instruction affected Richardo's and Jesse's substantial rights, we would be permitted to review the instruction even if the defense had failed to object to it in the trial court. (§ 1259; People v. Dennis (1998) 17 Cal.4th 468, 534-535.)
We therefore turn to the merits. "[A] defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the 'natural and probable consequence' of the target crime." (People v. Prettyman (1996) 14 Cal.4th 248, 261.) "[T]o convict a defendant of a crime under this doctrine, the jury need not unanimously agree on the particular target crime the defendant aided and abetted. [Citations.]"*fn7 (Id. at pp. 267-268.)
In order to find a defendant guilty on a "natural and probable consequences" theory, the jury "must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime[;] . . . [and] that (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Prettyman, supra, 14 Cal.4th at p. 262, fn. omitted.) A charged crime is a natural and probable consequence of a target crime if, given the circumstances of the commission of the target crime, the commission of the charged crime was reasonably foreseeable. (Id. at p. 261; see also People v. Mendoza (1998) 18 Cal.4th 1114, 1133; see generally 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 82, pp. 131-132.) The standard is an objective one: "The . . . question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]" (People v. Mendoza, supra, 18 Cal.4th at p. 1133.) Whether a charged crime is a natural and probable consequence of a target crime is a question of fact. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
The trial court instructed the jury that "[e]very person who . . . [u]nlawfully fights, challenges another person to fight in a public place[,] or . . . [i]n a public place directs at one or more persons offensive words which are inherently likely to provoke an immediate violent reaction is guilty of breach of peace[.]" (Cf. § 415.) The instructions further defined "offensive words" as "speech which constitutes a clear and present danger of provoking others to immediate violence." The court further instructed the jury that every person who (1) "willfully commit[s] an act which by its nature would probably and directly result in the application of physical force on another person," (2) is "aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act . . . physical force would be applied to another person," and (3) at the time of the act "had the present ability to apply physical force to the person of another" is guilty of a misdemeanor assault. (Cf. § 240.)
The record contains substantial evidence from which a reasonable jury could have concluded beyond a reasonable doubt that Richardo and Jesse aided and abetted the crimes of breach of the peace and assault. The evidence shows that Richardo and Jesse encouraged or facilitated Rivera's posing of the "Where are you from?" challenge by approaching Ortega's group with Rivera and identifying themselves, through hand signals, as members of the same gang as Rivera. The evidence also shows that gang challenges "often lead to violence" and that the challenge "Where are you from?" in particular "usually" leads to "some sort of violence or some type of confrontation." The jury therefore could have reasonably concluded that intentionally encouraging such a verbal challenge constituted intentionally encouraging a breach of the peace or an assault. Thus, the record contains sufficient evidence to support a finding that Richardo and Jesse intentionally encouraged or facilitated a breach of the peace or an assault by encouraging or facilitating Rivera's posing of the verbal challenge, "Where are you from?"
Consequently, the question before us is: Does the evidence support an inference that, under the circumstances presented in this case, a shooting or a homicide (or an attempted homicide) was a natural and probable consequence of the verbal challenge? ...