COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 21, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DINO ALLEN MORENO ET AL., DEFENDANT AND APPELLANT.
Super. Ct. No. SWF008909 APPEALS from judgments of the Superior Court of Riverside County, Albert J. Wojcik, Judge.
The opinion of the court was delivered by: O'rourke, J.
P. v. Moreno CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Affirmed in part, reversed in part, modified and remanded with directions.
A jury convicted defendant Dino Allen Moreno and co-defendant Shaundeen Boniface with willful, deliberate and premeditated attempted murder (Pen. Code,*fn1 §§ 664, 187, subd. (a); count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), unlawful possession of weapons by a felon (§ 12021, subd. (a)(1); count 3), unlawful possession of an assault weapon (§ 12280, subd. (b); count 4), unlawful possession of ammunition by a felon (§ 12316, subd. (b)(1); count 5), and conspiracy to obstruct justice (§ 182, subd. (a)(5); count 6). It found true allegations that during the commission of the attempted murder and the assault of counts 1 and 2, Moreno and Boniface personally discharged and used a firearm within the meaning of sections 12022.53, subdivision (c) and 12022.5, subdivision (a). Moreno waived his right to jury trial and the trial court found true allegations that he was on bail when he committed the offenses (§ 12022.1) and that he had two prison priors, two serious felony priors, and two strike prior convictions (§§ 677, subds. (a), (c), (e)(2)(A), 667.5, subd. (b), 1170.12, subd. (c)(2)(A)).
The court sentenced Moreno to a total term of 109 years to life, consisting of an indeterminate term of 27 years to life plus 20 years for the gun use enhancement on count 1, 10 years for the serious felony prior convictions, two years for the on-bail enhancement, and consecutive sentences of 25 years to life each for counts 4 and 6. It imposed and stayed sentences for counts 2, 3 and 5 and stayed the section 667.5, subdivision (b) enhancements. It sentenced Boniface to a total term of 28 years and four months, consisting of an indeterminate term of seven years to life plus a consecutive 20 years for the firearm enhancement for count 1, and consecutive eight month terms for counts 4 and 6, resulting in a determinate term on those counts of 21 years and four months. Under section 654, the court stayed Boniface's sentences for counts 2, 3 and 5.
On appeal, Moreno contends: (1) there is insufficient evidence to show he intended to obstruct justice and thus his conviction for conspiracy violates the due process clause of the Fourteenth Amendment; (2) admission of his inadmissible statements to a deputy violated his Fifth Amendment privilege against self-incrimination and right to counsel; (3) the court erred in sentencing him on the attempted murder conviction; and (4) the court should have stayed the sentence imposed for the on-bail enhancement. Boniface contends: (1) her attempted murder conviction must be reversed for instructional error on the natural and probable consequences doctrine of conspirator liability; (2) the trial court should have stayed under section 654 her sentence for the count 6 conspiracy to obstruct justice; and (3) this court should correct a clerical error in her sentencing minute order and abstract of judgment. Moreno and Boniface each state they join the other's arguments. With the exception of Boniface's section 654 issue, the People concede the sentencing issues.
We agree the defendants' count 6 conspiracy convictions must be reversed for insufficient evidence. As to Moreno, we further hold the proper sentence on his premeditated attempted murder conviction was 25 years to life, and order correction of his sentencing order and abstract of judgment. As to his on-bail enhancement, the court must determine whether the sentence should be stayed pending disposition of the primary offense for which the enhancement was imposed. As to Boniface, we need not reach her section 654 argument having reversed her conspiracy conviction. We order correction of her sentencing order and the abstract of judgment to strike references to section 667.61. Otherwise, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2004, bail fugitive recovery agent Steve Watson received information that Moreno, a person he had been hired to find, was at a mobile home located on the Soboba Indian Reservation. He was also informed that Moreno might be armed. On August 25, 2004, Watson took his stepson Fernando Hernandez and two other assistants, Miguel Avila and Anthony Ellis, to the reservation. The men were armed with various lethal and nonlethal weapons. Watson brought a color booking photograph of Moreno.
Watson approached the door of the residence and knocked, shouting, "B.E.A.!"*fn2 At the same time, Hernandez looked in a front window and saw Moreno and his girlfriend, Boniface, sitting on the couch with a white bullet proof vest and a chrome revolver within Moreno's reach. Hernandez moved backwards and called out a warning to Watson, who was demanding the occupants open the door, and within seconds Hernandez heard rapid gunshots and saw Avila come under fire. Hernandez himself was receiving gunfire from "multiple areas" from two distinct directions and in different calibers. Seconds later, Hernandez saw Boniface exit the home with a shotgun and move towards Watson, where he lost sight of her. He yelled out to Watson that she was coming and then heard a shotgun blast.
According to Watson, Boniface came to the door and told him Moreno was not there. Watson stepped past the threshold and, while Boniface told him to leave her property, he saw Moreno, who denied he was the person in Watson's photograph. Moreno kicked at the door, which caused Watson to step outside back onto the porch. The door slammed shut, and within seconds bullets began coming through the house walls. Watson ran for cover behind a blue van on the property. He saw Hernandez run behind a wood pile and Avila taking fire as well. At some point Watson heard Hernandez warn him about Boniface, and saw her walk fast toward him with a weapon "at the ready," cursing. He fired a beanbag into her stomach with his shotgun.*fn3 Ellis handcuffed her and took her into custody. Watson was still hearing shots fired from the property coming from his rear. He called police, and at some point officers arrived at the scene. Only Boniface was taken into custody.
Responding officers recovered from the mobile home seven guns including loaded and unloaded rifles and handguns, as well as expended shell casings, bags and boxes of ammunition, bullets and a bulletproof vest. The walls, doors and other areas of the residence had bullet holes from shots fired from its interior. Outside, officers observed bullet holes in the fence surrounding the residence, bullet damage to a van parked in the residence's carport, live bullets, and more expended shell casings from a shotgun and other guns. Some of the firearms found inside the residence were functional assault weapons.
Several weeks later, Riverside County Deputy Sheriff Jason Sevieri responded to assist a domestic violence call at a motel where he contacted Moreno, who gave him a false name. The deputy suspected the information was not correct, and he took Moreno's picture and a thumbprint. After Moreno was released, the deputy returned to the station where he saw a wanted poster for Moreno indicating he was armed with a high-powered rifle and dangerous. He put out a broadcast, and police shortly thereafter detained Moreno and two other individuals. Deputy Sevieri testified he arrived at the scene and transported Moreno to the jail, explaining that during their interaction, Moreno told him during their "back and forth" talk that bail agents had come to his residence, resulting in an altercation involving his girlfriend or wife in which he had acted in self defense. He also asked Moreno where his rifle was located and Moreno essentially told him he had gotten rid of it a long time ago.
I. Moreno's Appeal
A. Sufficiency of Evidence of Conspiracy
Moreno contends there is insufficient evidence he conspired with Boniface to obstruct justice or the due administration of the law, which were the overt acts alleged and presented to the jury in support of the conspiracy charge. He maintains it is legally impossible to engage in such a conspiracy by refusing to submit to a "purely private 'arrest' " by a bail fugitive recovery person who is assertedly a "private actor . . . acting for a private purpose," namely, to enforce a private contractual arrangement with the bail bondsman. He argues a conviction for conspiracy to obstruct justice must directly involve a public official in the conspiracy or intend to cause a public official to do or fail to do some act relating to an official duty.
Pointing out that a bail agent performs the duties of a surety whose obligation is to secure the defendant's attendance, the People respond that Moreno's failure to submit to the agents' authority and attempt to escape arrest amounted to obstruction of justice and due administration of the laws. According to the People, a bail agent is not simply a private actor, but has official duties under the Penal Code when they recover a fugitive in part because following the defendant's arrest they are legally obligated to transport him or her to a court, magistrate, sheriff, or police.
In reviewing Moreno's contention, we determine whether, viewing the light most favorable to the prosecution, any "reasonable trier of fact" could have found him guilty beyond a reasonable doubt of the essential elements of the crime for which he was convicted. (People v. Young (2005) 34 Cal.4th 1149, 1175; People v. Stanley (1995) 10 Cal.4th 764, 792.) The standard is identical under the U.S. and California Constitutions. (Young, at p. 1175.) " 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.' " (People v. Cuellar (2008) 165 Cal.App.4th 833, 838.)
"Section 182 defines as criminal conspiracy acts committed with the purpose '. . . to pervert or obstruct justice, or the due administration of the laws.' Generally speaking, conduct which constitutes an offense against public justice, or the administration of law includes both malfeasance and nonfeasance by an officer in connection with the administration of his public duties, and also anything done by a person in hindering or obstructing an officer in the performance of his official obligations." (Lorenson v. Superior Court in and for Los Angeles County (1950) 35 Cal.2d 49, 59; see also People v. Sullivan (1952) 113 Cal.App.2d 510, 520; People v. Martin (1982) 135 Cal.App.3d 710, 720.) It is not necessary to prove an intent or motive to obstruct justice; the evidence is sufficient if it shows an intent to do acts constituting an obstruction of justice as such acts are described in the accusatory pleading. (People v. Martin, at p. 722.) Thus, allegations that a defendant in concert with others presented a worthless bail bond to a California superior court are sufficient to constitute the offense of conspiracy to obstruct justice. (People v. Ambrose (1916) 31 Cal.App. 460,461-462.)
We hold Moreno and Boniface's efforts to avoid arrest by the bail recovery agents in this case cannot constitute acts to evade or obstruct justice or the due administration of the laws within the meaning of section 182. This is so because the agents are not public officials, and there is no evidence they were acting in furtherance of any "official obligation" or public duty in obtaining the defendants' surrender. There are no cases directly on point. However, in a related context, one California appellate court has held that to the extent bail bondsmen do not act in concert with police in arresting an individual, they are private citizens acting to protect their own private financial interests. (People v. Houle (1970) 13 Cal.App.3d 892, 895.) In Houle, the court rejected application of the Fourth Amendment's prohibition against unreasonable searches and seizures to a bail bondsman arresting a defendant and finding contraband. It reasoned that while a bondsman "occupies a distinctive position which permits him to take the defendant into custody [citations], . . . he must be classified as a private citizen for purpose of application of the exclusionary rule. . . . A bondsman, in making an arrest of an absconded defendant, is acting to protect his own private financial interest and not to vindicate the interest of the state." (Id. at p. 895.) Because the bondsman was not acting as a police agent or in concert with police and found the contraband before any police participation, the exclusionary rule did not apply. (Id. at pp. 895-896.)
Here, there is no evidence Watson and the other bail agents worked with or were assisted by law enforcement in their efforts to apprehend the defendants and take them into custody, or that they had identified themselves as agents of the state. Absent official state assistance or involvement, the majority of courts hold that bail bondsmen act as private citizens in pursuit of private interests. (Houle, 13 Cal.App.3d 892; Ouzts v. Maryland Nat'l Ins. Co. (9th Cir. 1974) 505 F.2d 547, 553 [bail bondsman was not a state actor where he did not act in conformity with state law and did not enlist the assistance of law enforcement]; Dean v. Olibas (8th Cir. 1997) 129 F.3d 1001, 1006, fn. 4 ["bondsmen are private citizens who interact with the state in the course of pursuing their private interests" and "[t]heir conduct is therefore not attributable to the state"]; Landry v. A-Able Bonding, Inc. (5th Cir. 1996) 75 F.3d 200, 204 ["The majority of federal courts that have addressed the state action issue in the context of bail bondsmen have based their decisions on whether the bondsmen enlisted the assistance of law enforcement officers in arresting their principals"]; United States v. Poe (10th Cir. 2009) 556 F.3d 1113, 1124 [rejecting argument that law enforcement and the bail bonds industry have a "symbiotic relationship"; "These bounty hunters were hired to apprehend Poe by the bail bonds company, which was responsible for the bond it posted on Poe's behalf. . . . We do not inquire if the police benefitted from the private conduct, but if the bounty hunters had a 'legitimate, independent motivation' to conduct the search . . . Because the bounty hunters did not intend to assist law enforcement, they are not state actors . . . ."]; Weaver v. James Bonding Co., Inc. (S.D.Ala. 2006) 442 F.Supp.2d 1219, 1226; Green v. Abony Bail Bond (M.D.Fla. 2004) 316 F.Supp.2d 1254, 1260-1262; McCoy v. Johnson (N.D.Ga. 1997) 176 F.R.D. 676, 681-682 [bondsman and agent bounty hunter held not a state actor because there were no allegations he enlisted the aid of law enforcement officers in his attempted arrest]; State v. Collins (Md. 2002) 790 A.2d 660, 711-713 [declining to find per se state action from actions of bail bond persons who are licensed and regulated by Maryland, but applying a case-by-case analysis to determine presence of state action]; but see, Jackson v. Pantazes (4th Cir. 1987) 810 F.2d 426, 429-430 [holding in dicta that the "symbiotic relationship" between bail bondsmen and the criminal court system sufficed to render the bondsman's conduct state action, as they depend upon the judicial use of a bail bond system, are licensed by the state, facilitate the pretrial release of accused persons, monitor their whereabouts and retrieve them for trial].)*fn4
We acknowledge that the object of bail and its forfeiture is to insure the attendance of the accused and his or her obedience to the orders and judgment of the court, and that the dominion of the sureties over the principal has been characterized as a continuance of their original imprisonment. (People v. Seneca Ins. Co. (2010) 189 Cal.App.4th 1075, 1081; People v. Safety Nat. Cas. Corp. (2010) 186 Cal.App.4th 959, 965; People v. Lexington Nat. Ins. Co. (2007) 147 Cal.App.4th 1192, 1198, citing Taylor v. Taintor (1872) 83 U.S. 366.) The "bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond." (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22; see People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 6; People v. Lexington Nat. Ins. Co., at p. 1197.) If the defendant fails to appear, the surety becomes the absolute debtor of the state for the amount of the bond. (People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 356.) However, when the defendant is released into the surety's custody, it is the surety's sole responsibility to produce him or her at the appointed time. (Ibid.) The government has no obligation to cooperate in ensuring the surety can produce the defendant. (Ibid.) In this context, we decline to attribute official action to an agent who is privately hired and paid by a surety to recover a fugitive, or conclude that the agent is duly administering the law when making a private arrest.
The facts of this case, even viewed in the light most favorable to the People, show no indication either Moreno or Boniface interfered with, hindered, or obstructed a public official or any other person performing official duties. Having no hypothesis on this record to support a conspiracy to obstruct justice or the due administration of the law, we reverse both defendants' count 6 convictions for insufficient evidence.
B. Fifth Amendment Privilege Against Self-Incrimination
Moreno contends the trial court violated his Fifth Amendment right against self-incrimination by admitting into evidence his statements made to Deputy Sevieri. Deputy Sevieri had testified in an Evidence Code section 402 hearing that because he had seen the flier indicating Moreno was armed with a high powered rifle, he asked Moreno where the rifle was assertedly in the interest of officer safety. Deputy Sevieri also engaged in conversation with Moreno about how he was apprehended at the motel that day; he characterized the conversation with Moreno as "joking." He explained he had not prepared a report regarding the statements, and if he had intended to interrogate or question Moreno, he would have brought him to the station, recorded the conversation, and taken notes.
Focusing generally on Deputy Sevieri's conversation, the trial court ruled Moreno's statements admissible on grounds the officer's exchange with Moreno was casual and nonconfrontational and thus not reasonably likely to elicit an incriminating response, failing to meet the criteria for an interrogation. As for the officer's question about Moreno's rifle, the court found that likely to elicit an incriminating response, but one that fell within the public safety exception. It denied Moreno's motion to suppress Moreno's statements.
The People concede Moreno was in custody at the time he made his statements. However, they maintain Deputy Sevieri did not interrogate Moreno, and to the extent the officer did question him concerning the location of his firearm, we should uphold the trial court's determination that the question fell within the public safety exception to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). They finally argue that even if that were not the case, the admission of Moreno's statements were harmless beyond a reasonable doubt in view of overwhelming evidence that Moreno and Boniface were the shooters.
An interrogation for purposes of Miranda refers not only to express questioning but to its "functional equivalent," that is, to any words or actions by law enforcement officers that the officers should know are reasonably likely to elicit an "incriminating response" from the suspect. (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301.) An incriminating response means any response, whether inculpatory or exculpatory, that the prosecution may seek to introduce at trial. (Id. at p. 301, fn. 5.) The latter part of the definition of interrogation --words or actions the officers should know are reasonably likely to elicit an incriminating response -- focuses primarily upon the perceptions of the suspect rather than the intent of the police. (Id. at p. 301.) The intent of the officer, however, may have some bearing on whether he or she should have known that their words or actions were reasonably likely to evoke an incriminating response. (Id. at pp. 301-301, fn. 7.) Here, Deputy Sevieri testified at the Evidence Code section 402 hearing that he spoke jokingly with Moreno concerning his capture at the motel; there is no indication the deputy made any statements that would have required an inculpatory reply, or that the deputy expected one. (Accord, People v. Claxton (1982) 129 Cal.App.3d 638, 647, 654-655 [juvenile hall supervisor asking, "What did you get yourself into?" were not words the questioner should have known were reasonably likely to elicit an incriminating response], disapproved on other grounds as stated in People v. Fuentes (1998) 61 Cal.App.4th 956, 969, fn.12.)*fn5
As for the deputy's question about Moreno's rifle, we agree with the trial court the question was likely to elicit an incriminating response, but conclude the record supports the trial court's application of the public safety exception to the Miranda rule. At trial, Avila testified that the man he saw exiting the residence that day shot at him with a semi-automatic rifle. Moreno had escaped from the bail agents only several weeks earlier in possession of an assault rifle, and was captured without that weapon. Though he was detained in a police vehicle at the time of questioning and not himself a threat to the public or the deputy, the fact Moreno was captured with other individuals suggested that he may have given his assault weapon to another person. Deputy Sevieri was sufficiently concerned about the danger and possible location of Moreno's rifle that he asked about it to protect the public. These facts demonstrate sufficient exigency and danger from such a weapon to permit a conclusion that the deputy's question concerning the assault rifle's location was "reasonably prompted by public safety" (People v. Sims (1993) 5 Cal.4th 405, 450, overruled on other grounds in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032) and the need for an answer " 'outweigh[ed] the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.' " (Sims, at p. 450.)
Even assuming the trial court erred in admitting Moreno's statements, the error was not prejudicial under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (People v. Low (2010) 49 Cal.4th 372, 392; People v. Davis (2009) 46 Cal.4th 539, 598.) The erroneous admission of extra-judicial statements obtained in violation of Miranda is not per se reversible error. (People v. Sims, supra, 5 Cal.4th at p. 447.) Rather, we apply the Chapman harmless error analysis, in which we decide whether " 'beyond a reasonable doubt . . . the error complained of did not contribute to the verdict obtained.' " (Low, at p. 392.) Alternatively stated, the alleged error "must be 'unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (Id. at pp. 392-393.)
Moreno asserts admission of his statements was prejudicial because his main defense was one of mistaken identity; that he had a clean shaven head at the time and was not the person who shot at the bail agents. He points to Avila's testimony that he did not recognize the shooter as Moreno, and Avila's statement to police that the male shooter had a ponytail. But as the People point out, both Watson and Hernandez identified Moreno at trial, testifying they were "100 percent" certain that the man in the trailer was him. Both were on the porch of the mobile home and in a position to identify Moreno from the booking photograph. Considering the strength of that identification evidence, we conclude the assumed error in admitting Moreno's statement while in custody would not result in prejudice. We are convinced beyond a reasonable doubt that any error did not contribute to the verdict.
C. Sentencing Issues
1. Sentence for Attempted Premeditated Murder
Moreno contends the court erred by sentencing him to 27 years to life for his attempted murder conviction; that under People v. Dozier (2000) 78 Cal.App.4th 1195, the proper sentence was 25 years to life. The People agree that People v. Dozier requires that Moreno's maximum sentence for that offense be 25 years to life.*fn6
Whether the trial court correctly sentenced Moreno on his attempted premeditated murder conviction is a question of statutory interpretation. (People v. Acosta (2002) 29 Cal.4th 105, 112 (Acosta).) Moreno had two prior strikes under the Three Strikes law. Thus, the Three Strikes law specifies that " 'the term for [his] current felony conviction shall be an indeterminate term of life imprisonment,' with the 'minimum term of the indeterminate sentence' being the greatest of the following options: (1) '[t]hree times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions'; (2) '[i]mprisonment in the state prison for 25 years'; or (3) '[t]he term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170 ) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046' (option 3)." (Acosta, 29 Cal.4th at pp. 111-112, quoting § 667, subd.(e)(2).)
The sentence for willful, deliberate and premeditated attempted murder is life with the possibility of parole. (§ 664, subd. (a).) Under the Determinate Sentencing Act, the prison term for an indeterminate life sentence with the possibility of parole is the actual time served in prison before release on parole. (Acosta, supra, 29 Cal.4th at p. 113; see People v. Jefferson (1999) 21 Cal.4th 86, 95.) While section 664 does not specify such a minimum term, section 3046 does, because it " 'requires that a defendant sentenced to life imprisonment with the possibility of parole to serve "at least seven calendar years or a term as established pursuant to any other section of law that establishes a [greater] minimum period of confinement" before becoming eligible for parole.' " (Acosta, at p. 113.) Here, the minimum term would be seven years, and if tripled under option 1 above (§ 667, subd. (e)(2)), the term would be 21, not 27, years. Thus, under the Three Strikes law, 25 years to life is the proper sentence for an offense that carries a straight indeterminate term, as here. We therefore modify the judgment to strike Moreno's 27-year-to-life sentence and impose a 25-year-to-life sentence on count 1.
2. Stay of On-Bail Enhancement
Moreno contends the court should have stayed the two-year sentence imposed for the section 12022.1 on-bail enhancement because at the time of sentencing, he had not yet been tried for the primary offense (felony evading) on which he was released from custody at the time of his secondary felony offenses. The People concede that enhancement should have been stayed, and ask us to remand the matter for the court to determine whether there has been a final disposition in the case involving the primary offense, and if not, amend the abstract of judgment to stay the enhancement pending resolution of that case.
Though the trial court was empowered to impose sentence on the section 12022.1 enhancement (People v. Meloney (2003) 30 Cal.4th 1145, 1162), if Moreno was not yet convicted of the primary offense, the trial court should have stayed execution of the two-year sentence pending disposition of the primary offense felony case. (§ 12022.1, subd. (d); Meloney, at pp. 1156-1157 & fn. 9, 1160-1162.) Here, the parties state that the record does not reflect whether Moreno had been convicted or sentenced on the primary felony case.*fn7 The court showed no indication it was inclined to strike the enhancement under section 1385 (see Meloney, at pp. 1162-1163 [where secondary offense is tried and resolved first, trial court has discretion to either strike the on-bail enhancement or impose it as part of the defendant's sentence]), and accordingly, we direct the trial court on remand to determine whether Moreno has had sentence imposed in the case involving the primary offense, and if not, to stay execution of that aspect of Moreno's sentence pending disposition of that case.
II. Boniface's Appeal
A. Instructional Error
Boniface contends her count 1 attempted premeditated murder conviction must be reversed for instructional error on the natural and probable consequences doctrine, because the court did not instruct sua sponte it could find her guilty of unpremeditated attempted murder or voluntary attempted manslaughter even if it found Moreno guilty of attempted premeditated murder.*fn8 She argues the circumstances are similar to those in Hart, supra, 176 Cal.App.4th 662, in which the Third District Court of Appeal held a defendant was prejudiced by assertedly incorrect instructions on the doctrine and reversed his attempted premeditated murder conviction, remanding it for retrial.
The People respond that Boniface forfeited her claim of instructional error by failing to request modifications to the standard jury instruction on the natural and probable consequences doctrine and conspiracy. They further argue Hart was incorrectly decided; that its analysis misconstrues the nature of aider and abettor liability and eliminates derivative liability by separating the aider's liability from that of the principal. Alternatively, the People argue that, even if we follow Hart and find ambiguity in the natural and probable consequences instruction, the jury instructions as a whole cured any alleged error. Finally, they argue it is highly unlikely the jury based its verdict on the natural and probable consequences doctrine since there was overwhelming evidence Boniface personally engaged in premeditated and deliberated attempted murder.
1. Standard of Review
Having concluded that a conspiracy to obstruct justice was not supported as a matter of law on this evidence, we believe the appropriate inquiry is whether it is reasonably probable, in absence of instructions on the natural and probable consequence doctrine for conspiracy,*fn9 the jury would have reached a more favorable verdict against Boniface. (See People v. Gamache (2010) 48 Cal.4th 347, 376.) In a non-capital case, we review any error to properly instruct the jury for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Gamache, at p. 376; People v. Breverman (1998) 19 Cal.4th 142, 178 [standard for failure to instruct on lesser included offense].) Under that standard, the conviction may be reversed only if " 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Breverman, at p. 178.)
In Hart, supra, 176 Cal.App.4th 662, the appellate court held the jury was not properly instructed on the natural and probable consequences doctrine as to a defendant accomplice in a case involving an armed robbery during which his co-defendant shot the victim. (Id. at p. 665.) Both defendants were convicted of first degree attempted murder. (Ibid.) The jury was instructed that it could find the accomplice guilty of attempted murder if it found it was a natural and probable consequence of attempted robbery. (Id. at p. 669.)
The Hart court noted that, based on the facts of the case, a reasonable jury could have concluded the actual perpetrator was guilty of attempted premeditated murder but that the accomplice was guilty of no more than attempted unpremeditated murder; that a reasonable person in the accomplice's position might know his co-defendant had a gun and intended to use it if necessary, but not that he would have premeditated the victim's murder as a natural and probable result of the planned robbery. (Hart, supra, 176 Cal.App.4th at p. 672.) Under these facts and relying on People v. Woods, supra, 8 Cal.App.4th 1570, the court found the instructions failed to inform the jury that in order to find the accomplice guilty of attempted premeditated murder "it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery." (Hart, 176 Cal.App.4th at pp. 672-673.) It held when a defendant's liability for attempted first degree murder is as an accomplice under a natural and probable consequences theory, the trial court has a sua sponte duty to instruct the jury that it must determine whether premeditation and deliberation was a natural and probable consequence of the target crime when the evidence would support a finding that a lesser degree of attempted murder was foreseeable and that facts did not "ineluctably" lead to the conclusion that the greater degree of the crime was foreseeable. (Id. at pp. 672-673.)
Addressing prejudice, the Hart court found the jury was "left to its own devices without proper guidance concerning the law" and that "[u]nder the instructions given, the jury might have found [the accomplice] guilty of attempted murder using the natural and probable consequences doctrine, an objective test, and then found the premeditation and deliberation element true using the only instruction given as to that element, which described a subjective test." (Hart, supra, 176 Cal.App.4th at p. 674.) For this reason, it found the instructions "procedurally deficient," requiring that the accomplice's attempted premeditated murder conviction be reversed and remanded for retrial to determine whether the defendant was guilty under the premeditation and deliberation element. (Ibid.)
We conclude Boniface has not shown prejudicial error. There is no reasonable probability Boniface would have obtained a more favorable outcome on count 1 had the trial court omitted the natural and probable consequence instructions. First, unlike Hart, in which a reasonable jury could have concluded the actual perpetrator was guilty of premeditation but the accomplice was not, there is virtually no evidence from which the jury under these instructions could have concluded that the natural and probable consequence of the alleged conspiracy was attempted unpremeditated murder or voluntary manslaughter. According to Watson, people in contact with Moreno were telling him to be careful and making other "foreboding" statements that Moreno had said he was not going back to prison. Moreno told his mother he did not want to be reincarcerated, and after the incident, she reported to police that Moreno told her he did not want to return to jail. Moreno and Boniface had firearms at ready access in the residence, as well as a bullet-proof vest on the couch where they were seated. The bail agents received fire from various locations on the property in different calibers, evidence from which the jury could reasonably deduce both Moreno and Boniface were shooting. Indeed, Boniface pursued Watson and pointed a rifle at him before he shot her with the beanbag round.
Under these facts, we conclude a finding of first degree premeditated murder was the only natural and probable consequence of the alleged conspiracy; that a reasonable person in Boniface's position -- having a bullet proof vest and semiautomatic firearms and rifles at the ready to assist her boyfriend evade authorities -- would have known that a premeditated attempted murder was likely to occur if nothing unusual intervened. Stated another way, the facts "ineluctably" lead to the conclusion that both Moreno and Boniface " 'weigh[ed] and consider[ed]' " the question of killing before deciding to engage in attempted murder (see People v. Prieto (2003) 30 Cal.4th 226, 253), and that premeditated (as opposed to unpremeditated) attempted murder was the only natural and probable consequence of the alleged conspiracy to obstruct justice.
These circumstances distinguish this case from Hart, supra, 176 Cal.App.4th 662, in which the target crime was an attempted robbery in which the weapon was incidental to the crime and might never have been used by the principal in the robbery. Thus, the record contains ample evidence from which the jury could conclude Boniface's liability for attempted premeditated murder was not vicarious -- and that the natural and probable consequences doctrine would not come into play -- in reaching its verdict.
B. Section 654 Stay of Sentence on Conspiracy to Obstruct Justice
Boniface contends the trial court erred by failing to stay, under section 654, the consecutive eight-month term on her conviction for conspiracy to obstruct justice. Having reversed Boniface's conspiracy conviction for insufficient evidence, we need not reach this claim.
C. Amendment of Boniface's Sentencing Minute Order and Abstract of Judgment
Boniface contends the minute order from her sentencing and her abstract of judgment must be corrected to strike references to Penal Code section 667.61, the one-strike law applicable to certain sex offenders, because Boniface was not sentenced under that statute.
Both the minute order and abstract of judgment erroneously read: "Defendant sentenced pursuant to section 667.61 PC." We agree, as does respondent, that this is a clerical error, as Boniface was not charged or convicted of any offense identified within that section (§ 667.61, subd. (c)). Accordingly we direct the trial court to correct the March 6, 2009 minute order and the abstract of judgment to strike those words. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Moreno's and Boniface's count 6 conspiracy convictions are reversed. With regard to Moreno's on-bail enhancement, the superior court is directed to determine whether Moreno has had sentence imposed in the case involving the primary offense, and if not, to stay execution of that aspect of Moreno's sentence pending disposition of that case. Moreno's judgment and sentencing minute order is modified to strike the 27-year-to-life sentence on his attempted murder conviction, and to impose in its place a sentence of 25 years to life. The trial court is directed to strike the sentence, "Defendant sentenced pursuant to section 667.61 PC" from Boniface's abstract of judgment and sentencing minute order. The trial court is ordered to modify the abstracts of judgment accordingly, and forward copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
McCONNELL, P. J.