San Mateo County Super. Ct. Nos. SC059521, SC155260
The opinion of the court was delivered by: Jones, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted appellants Shawn and Brian Hedlin of first degree murder (Pen. Code, § 187),*fn1 attempted murder (§ 664/187), false imprisonment (§ 236), and first degree burglary (§ 460, subd. (a)). The jury also convicted Shawn of unlawful possession of a firearm (§ 12021, subd. (a)(1)) and found various sentencing enhancements true as to both appellants. The court found appellants' prior conviction allegations true and sentenced them to state prison.
On appeal, appellants contend the court erred by denying their Batson/Wheeler,*fn2 mistrial, and new trial motions. In addition, Brian contends: (1) the denial his motion for severance deprived him of due process of law; (2) the court violated his due process rights by instructing the jury on murder as a natural and probable consequence of aiding and abetting an assault with a firearm; (3) the court's failure to instruct the jury on implied malice second degree murder violated his constitutional rights; and (3) the jury likely misunderstood or misinterpreted the court's instruction on the attempted murder special allegation.
FACTUAL AND PROCEDURAL BACKGROUND
We provide only an overview of the facts here. We provide additional factual and procedural details as germane to the discussion of appellants' specific claims.
In January 2005, Eduardo Zaparolli, who went by the nickname, "Bulldog," was living in a third floor apartment in South San Francisco with Gregorio Chicas. Zaparolli was dating Nelia Lopez; Chicas was dating Jeanette Briones.
Zaparolli crashed his mother's minivan several times in 2003. On one of those occasions, Zaparolli was driving and Brian was in the passenger seat. Zaparolli crashed the minivan and then "bailed from the scene" because he was "drunk." Brian was angry, but Zaparolli did not care because Zaparolli had "taken the rap for [Brian] at various times."
One evening in late January 2005, Zaparolli was "hanging out [and] drinking" with Brian and his girlfriend, Veronica Moreira. At 2:00 or 3:00 a.m. -- when Zaparolli was "really drunk" -- he spilled his beer and it splashed up and hit Brian's daughter. When Brian started to complain, Zaparolli told him that his daughter should not be up so late. The two men began to fight and Brian hit Zaparolli. Zaparolli did not remember how the fight ended; he thought he passed out from drinking too much.
On January 30, 2005, Lopez and Zaparolli went to bed in Zaparolli's bedroom at the end of the hallway. Chicas and Briones slept in the front bedroom. In the early morning on January 31, 2005, Zaparolli heard people "beating" on the front door of the apartment. Chicas answered the door and repeatedly asked who was there. He did not receive a response. When Chicas opened the door, he saw Shawn Hedlin. Appellants repeatedly asked Chicas, "[W]here is Bulldog?" Appellants argued with Chicas, and then there was a gunshot. Briones ran out of Chicas's bedroom when she heard the gunshot. She saw Chicas lying on the living room floor. Appellants asked Briones, "[W]here is Bulldog, where is Bulldog?" Briones screamed and was shot in the center of her forehead. She lost consciousness.
Shortly thereafter, Zaparolli's bedroom door was kicked open. As the door opened, Lopez saw appellants. She saw Shawn first: he was holding a gun in his right hand, and he "went straight to Bulldog." Zaparolli tried to bundle himself with blankets to absorb the impact from a gunshot. Zaparolli wrestled with Shawn and tried to keep the gun out of Shawn's hand. The gun fired, hitting Zaparolli in the back. Shawn fumbled as he tried to re-load the gun; Brian kicked Zaparolli in the head and wrestled with him. At that point, Brian said, "'[S]hoot him, shoot him, shoot him, finish him off.'" As Zaparolli lay on the ground, Shawn aimed his gun and shot Zaparolli "about three times." Zaparolli heard appellants laughing; Shawn stood over Zaparolli and laughed as he pointed the gun in Zaparolli's face. When Shawn ran "out of bullets," Zaparolli was able to get away.*fn3
As Lopez tried to get out of the bedroom, she saw Brian standing in the hallway, staring into the bedroom. He looked "angry" and as though he might be "on something." Brian would not let Lopez leave the bedroom. She told Brian "to think about what he was doing and to talk to [Shawn], tell him to stop, think about his daughter" but Brian "wouldn't budge." Finally, Lopez was able to get out of the bedroom. As she ran to the bathroom, she saw Chicas and Briones's bodies on the floor. Lopez jumped out of the bathroom window, hitting the ground three stories below and breaking her back. After some time, she got up and walked away, looking for help. She saw Brian running toward her, and she heard Shawn say, "'[G]et her.'" She turned a corner and began knocking on doors for help.
Police officers responded to neighbors' 911 calls and went to Zaparolli's apartment at approximately 3:10 a.m. They saw Chicas, dead in a pool of blood, and Briones in the hallway, mumbling and moaning. The officers had difficulty understanding what Briones was trying to say, but when they asked her, "[W]ho did this," she clearly said, "Shawn." Officers also spoke to Zaparolli, but he was uncooperative and would not tell them who shot him.*fn4 Several days after the incident, Zaparolli found two containers of gasoline on the front door of the apartment. Surveillance video from a gas station in South San Francisco showed Moreira paying for approximately two gallons of gas at approximately 3 a.m. on January 31, 2005.
Brian was arrested at approximately 8:30 a.m. on January 31, 2005. He did not have any "fresh injuries" on his hands. That same morning, Shawn asked his father to drive him to the bus depot in San Francisco so he could take a bus to Los Angeles to visit his aunt. Police officers stopped Shawn as he and his father were driving on Highway 280 and arrested him. Shawn had no injuries on his hands or face. Officers searched the car and found a "nylon bag that contained clothing and toilet articles, traveling articles." Officers searched Shawn's father's apartment and found Zaparolli's driver's license and ammunition.
Chicas's autopsy indicated he had been shot in the left shoulder and in the forehead. The gunshot to Chicas's forehead was fatal. There was strippling around the forehead wound, which indicated the barrel of the gun was about a foot or possibly two feet from Chicas when it was fired. An evidence technician examined Moreira's car and found a blood stain on the backseat. The blood was Zaparolli's.
Moreira testified for Brian under a grant of immunity. She is Brian's fianceee and the mother of his daughter. About a week before the incident on January 31, 2005, she and Brian were at a social gathering with several friends, including Zaparolli. Late in the evening, Zaparolli came up to Moreira, hit her on the head "for no reason," and spilled beer on her daughter, who started crying. Zaparolli refused to apologize. This made Brian mad, and he and Zaparolli fought. Later, Moreira told Shawn what happened.
On January 30, 2005, Moreira went to a liquor store with appellants and one of appellants' friends. They purchased beer, dropped off appellants' friend at his house, and went to Moreira's mother's house. There, Moreira had two Ciscos -- a flavored, "strong liquor" -- with appellants and went to bed at approximately 11:30 p.m. Before she went to bed, she talked with appellants about the incident with Zaparolli. The conversation was brief. Shawn said he was surprised Zaparolli "had no respect." Some time later, appellants came into Moreira's room and woke her because they wanted to drive her car to Zaparolli's. Appellants told Moreira they wanted to go to Zaparolli's home to "get an apology and kick his ass." Moreira refused to give appellants her keys because they were drunk. Later, appellants returned to Moreira's room and bugged her to take them to Zaparolli's house. She agreed.
When appellants got into Moreira's car, Brian said he needed gas for his truck and put two empty jugs into the car. As Moreira drove toward Zaparolli's apartment, she stopped at a gas station where Brian filled up the jugs with gas. Moreira drove to Zaparolli's. When they arrived at Zaparolli's apartment at 3:00 a.m. on January 31, 2005, Moreira and Brian argued about the smell of gas in the car.
Appellants got out of the car; Shawn carried the gas containers as appellants walked to Zaparolli's apartment. Moreira waited in the car. About 10 or 15 minutes later, she heard gunshots and screaming. Appellants returned to the car. Immediately thereafter, Brian appeared "[s]erious" and said, "'[h]e or Greg [Chicas] didn't deserve that, this shouldn't have happened.'" In response, Shawn said, "'don't worry you didn't do nothing, it's all on me.'" Moreira drove appellants to her mother's house and went to bed at 3:30 or 4:00 a.m. At 7:00 a.m., she drove Brian to work. When Moreira talked with the police later that afternoon, she lied about appellants' whereabouts to protect Brian.
Brian's blood alcohol level at approximately 9:00 a.m. was .12. According to forensic toxicologist Kenneth Mark, Brian's blood alcohol level would have been approximately .20 to .22 at 3:00 a.m. on January 31, 2005. A blood alcohol level of .20 affects vision, depth perception, and hearing. It also impairs judgment and sensory input. A person with a .20 blood alcohol level could "be completely out of it."
Shawn testified that he and Brian drove to Moreira's mother's house at approximately 11:00 p.m. on January 30, 2005. Appellants "sat around [and] drank" until they became intoxicated. While appellants drank, they talked about the incident between Brian and Zaparolli. Shawn thought Zaparolli had been disrespectful and wanted to go to Zaparolli's house to "hash things out . . . to resolve it" because Zaparolli had been like a brother to appellants. Brian did not want to go to Zaparolli's apartment -- he wanted to stay away from Zaparolli. Brian eventually relented because Shawn "kept nagging at him." Shawn did not plan on beating Zaparolli up and denied there was a plan to attack Zaparolli or anyone else in the apartment.
After they decided to go to Zaparolli's apartment, Brian woke Moreira, who had been sleeping in her bedroom. Moreira drove appellants to Zaparolli's apartment because appellants were drunk. Along the way, they stopped at a gas station to get gas for Brian's truck. Brian filled up two one-gallon containers of gas, and Shawn held the containers in the backseat of the car. When they arrived at Zaparolli's house, Moreira and Brian argued about the smell of gasoline in the car. At that point, Shawn got out of the car with the gasoline containers and walked up to Zaparolli's front door. He put the containers down and pounded on the door. Shawn brought the gas containers with him to the front door because the gas was making Moreira's car smell.
Chicas answered the door. He was mad. As he opened the door, he said, "'mother fucker, do you know what time it is?'" Shawn told Chicas he wanted to speak to Bulldog; in response, Chicas said he was "tired of this shit" and pointed a gun at Shawn. Shawn lunged at Chicas and tried to get the gun. Shawn and Chicas began wrestling and fighting. As they struggled down the hallway, shots were fired. As they wrestled, Briones jumped on Shawn's back. The gun fell to the ground and Shawn picked it up. He started shooting because he was scared and because he did not understand why Chicas and Briones had "turned" on him.
Then Shawn ran into Zaparolli's room at the end of the hallway. He pushed or kicked the door open because he wanted to get help and talk to Zaparolli. Zaparolli, who was standing on the bed, threw a blanket at Shawn and grabbed him. As Shawn and Zaparolli began to wrestle, Shawn hit Zaparolli with a gun and it fired. Shawn did not shoot Zaparolli, but he saw that Zaparolli was wounded. Shawn dropped the gun and ran out of the apartment. As he was leaving, he saw Brian staring at him.*fn5 Shawn did not remember seeing Chicas laying outside of Zaparolli's bedroom door. Shawn did not intend to attack Zaparolli, Chicas, or Briones.
Appellants ran to the car where Moreira was waiting. They jumped in the car and Moreira drove back to her mother's house. When they reached the house, Moreira went to her room. Appellants stayed in the garage, talking. Brian asked Shawn what had happened and what Shawn was going to do. Later that morning, Moreira drove Brian to work. Shawn decided to go to Los Angeles for several reasons. First, he was on parole for a robbery conviction and he did not want to go back to jail for a parole violation. ...