(Super. Ct. No. FVI701578) APPEALS from judgments of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
Defendants John Rene Loza and his wife, Jeanne Lynn Loza,*fn1 appeal from judgments entered after a jury convicted them of first degree murder.
On appeal, John contends (1) that his conviction for first degree murder must be reversed because the trial court erred when it instructed the jury on a "legally inadequate" alternate theory of felony murder; (2) that the trial court erred in admitting evidence that John was associated with the Vagos Motorcycle Club (Vagos); and (3) that there is insufficient evidence to support the finding that John personally and intentionally discharged a gun and inflicted great bodily injury or death. Jeanne contends (1) that the trial court erred in instructing the jury that an aider and abettor is "equally guilty" as the perpetrator of a criminal act pursuant to former CALCRIM No. 400, because an aider and abettor's mental state is personal and is not tied to the mental state of the perpetrator; (2) that in response to the jury's questions pertaining to the mental state of an aider and abettor, the trial court failed to adequately clarify for the jury that it must consider the mental state of an aider and abettor and that an aider and abettor may have a mental state that is different from the mental state of the direct perpetrator; (3) that the trial court inadequately responded to the jury's questions concerning whether a person must be alive in order to have been kidnapped; (4) that there is insufficient evidence to support her conviction for first degree murder under either a felony murder theory or as a premeditated murder; (5) that her rights to due process and a fair trial were violated when John unexpectedly testified in a manner that allowed the prosecutor to allege an additional charge of felony murder based on kidnapping; and (6) that the cumulative effect of the claimed errors requires reversal. John and Jeanne also join in any contentions raised by the other that may accrue to his or her benefit.
We conclude that Jeanne's attorney's failure to object to the trial court's instructions to the jury concerning the intent element of aiding and abetting, as well as to the court's response to the jury's questions on this issue, constitutes ineffective assistance of counsel and requires reversal of Jeanne's first degree murder conviction. We reject the defendants' other claims of error. We therefore affirm the judgment as to John, and reverse it as to Jeanne. We remand the case to the trial court for further proceedings as may be necessary with respect to Jeanne.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecution's case
Kathleen Barnes*fn2 and her longtime boyfriend, John Rintalan, the victim in this case, lived in a house on Lytle Creek Road. Barnes rented the house, and rented out rooms in the house to her friends, Connie Lee and Richard. Barnes also rented a small guest house on the property to John and Jeanne. Barnes had been laid off from her job in September 2006 and was being treated for cancer. By January 2007, her unemployment income ran out and money became a problem for her.
Sometime in February 2007, Jeanne demanded that Barnes return a lamp that Jeanne had previously given her because Jeanne was angry with Rintalan. Over the next few weeks there was tension between the Lozas and Rintalan. At one point, Jeanne told Barnes that Rintalan had locked the back door to the main house, thereby preventing Jeanne and John from having access to the main house to use the bathroom.*fn3
On the morning of March 13, 2007, Rintalan went to work. Barnes and Lee ran errands and returned to the house at approximately 3:00 or 4:00 p.m. They left again and returned at approximately 9:00 p.m. When they returned at 9:00 p.m., Rintalan did not seem to be at the house, but his motorcycle was parked in front of the garage. This was unusual because Rintalan loved his motorcycle and would not typically leave it out unattended and unsecured. In addition, it appeared that things in the backyard had been toppled or were in disarray. Barnes called out for Rintalan, but he did not respond. Barnes became nervous when she saw a bloody towel in the yard. Inside the house, Barnes noticed that a telephone message she had left for Rintalan on an answering machine earlier in the evening had been erased.
Barnes and some neighbors searched for Rintalan, but were unable to find him.
Laura Paris, who lived next door, testified that she had been outside talking with her sister on March 13 as it was getting dark. She heard noises that sounded like a fight coming from Barnes's property. Paris moved closer to Barnes's property and saw a short woman, who was not Barnes, standing near a fence. Paris was too far away from the woman to be able to identify her. Paris asked the woman what was going on, and the woman responded that Rintalan was shooting at squirrels. Paris told her husband that she thought she had heard Rintalan calling for help.
Later that night, Jeanne came into the main house and told Barnes and Lee that Rintalan had gotten into a car with "some Mexicans" who had later dumped him along the highway in a place where he could not be picked up. Jeanne said that Rintalan would be back for his motorcycle. However, Jeanne also said that Rintalan was "not going to come back, don't worry about it, and we're not going anywhere, Connie and I don't need to leave."
Jeanne and John left that night, before Barnes reported to the authorities that Rintalan was missing. They left behind a large container of their belongings. Barnes did not seen Jeanne and John again until the court proceedings began.
The following day, Barnes saw that the yard had been cleaned up to some extent. She noticed that a bloody rock that she had seen the previous day and the bloody towel were no longer there. Barnes saw bloody handprints on a tree, and found Rintalan's sunglasses on the ground near his motorcycle. Barnes called the police and reported that Rintalan was missing.
A deputy who responded to Barnes's residence noticed a number of suspicious things around the yard. He saw blood on the ground in several areas, disturbed and trampled vegetation, and various items in disarray, all of which he thought were signs of a possible struggle. There was water on the driveway, and it appeared to the deputy that the driveway had been hosed down. The deputy saw a bloody handprint on a tree and noticed blood splatter in various locations, including on Rintalan's motorcycle, his helmet, the ground near the garage, an old barrel, a wagon wheel, and a shard of glass.
On April 3, someone found Rintalan's decomposing body down an embankment near a road in Wrightwood. The body was located approximately 24 miles from Barnes's property, and two-tenths of a mile from Jeanne's sister's house. Rintalan's body was covered with a shower curtain that Barnes had been using to cover a sofa in her barn.
An autopsy of Rintalan's badly decomposed body revealed that Rintalan had been shot in his pelvic area, around his buttocks. His head had been wrapped with duct tape and plastic. One of Rintalan's fingers was broken, and he had a large fracture along the base of his skull. The pathologist concluded that the bullet wound had likely not been fatal, although it could have been fatal depending on the amount of bleeding that occurred. The skull fracture would have caused unconsciousness and could have been fatal. The pathologist expressed the opinion that if Rintalan was alive when the duct tape was applied, he would have suffocated within a matter of minutes, and that this was the probable cause of death. Blunt force trauma was a contributing cause, and could have been the actual cause of death. The gunshot wound was also considered to be a contributing cause. The pathologist found that there was methamphetamine and alcohol in Rintalan's system.
On April 13, police in Havasu City, Arizona pulled over the defendants and impounded their vehicle. During a search of the vehicle, police found a .357 magnum revolver in the engine compartment under the hood of the car.
Blood samples taken from the driveway and backyard of Barnes's property contained Rintalan's DNA. Rintalan's blood was found on the .357 magnum, as well as in the trunk of the defendants' car. In addition, there was DNA on the gun that was consistent with Rintalan's DNA. Both John and Jeanne's DNA was also found on the gun.
John testified that between 1990 and 2005 he had been a member of the Vagos. At one point, he had served as vice-president. The Vagos is a rival of the Hell's Angels.
According to John, Jeanne and Barnes had been friends for "a while," and he and Jeanne moved into the guest house on Barnes's property around October 2006. John said that Barnes and Rintalan argued all the time and did not get along. John said that he and Rintalan got along generally, but began to have some disagreements about four or five weeks before Rintalan's death. The disagreements stemmed from the fact that Rintalan wanted John and Jeanne to pay their rent money to him, rather than to Barnes. John told Rintalan that he would not give the rent money to Rintalan because he and Jeanne were renting from Barnes. Rintalan was upset, but, initially, did not become violent. In the weeks that followed, however, Rintalan would swear at John and Jeanne, and threaten them.
On the evening of March 13, Rintalan knocked on the door of the guest house and asked to speak with John outside. Rintalan asked John for the rent money. They argued, and Rintalan punched John in the face. John tried to fight back, but Rintalan was stronger and kept knocking John to the ground. John did manage to knock Rintalan to the ground a couple of times.
At some point, John pushed Rintalan off of him and went into the guest house to get his gun. John came back outside, stood 50 to 75 feet away from Rintalan, and pointed the gun at him, to scare him. John froze, and did not fire the gun. According to John, Rintalan grabbed John's hand and the gun. The gun fired and struck John in the leg. The men struggled and fell to the ground, and the gun fired again. Rintalan yelled out in pain. John maintained that he had not shot Rintalan, but, rather, that Rintalan's hand had been on the trigger and that both men were holding the gun when it fired.
The men continued to fight, and John struck Rintalan in the head with the gun, rendering him unconscious. John put away his gun and bandaged his leg. Rintalan then sat up and yelled for help. John got some duct tape and wrapped the tape around Rintalan's mouth because he "got tired of [Rintalin] screaming at [him]."
John panicked and dragged Rintalan to John's car. Rintalan was still fighting as John dragged him to the car. John wrapped Rintalan in a shower curtain, and put him in the trunk. John thought he could hear Rintalan breathing and gurgling as John placed him in the trunk.
John drove away from the property with Rintalan in the trunk. When John stopped in Wrightwood, he lifted Rintalan out of the trunk. John gave conflicting testimony about Rintalan's state at the time John lifted him out of the trunk. At one point, John said that he could hear Rintalan breathing and he thought that Rintalan was unconscious. However, John also stated that he was not sure whether Rintalan was dead when he removed Rintalan from the trunk.
John claimed that he had not intended to kill Rintalan, but instead, that he had just wanted to get Rintalan away from him. According to John, Jeanne had passed out earlier that evening from drinking. He said that she had not helped him either during the fight or in disposing of Rintalan's body. He also denied that Jeanne was the woman who told the neighbor that Rintalan was shooting at squirrels. According to John, after he dumped Rintalan's body, he returned home and awakened Jeanne to tell her what had happened. They immediately packed up their belongings and left.
On April 24, 2008, the San Bernardino County District Attorney filed an information charging John and Jeanne with murder (Pen. Code, § 187, subd. (a)).*fn4 The information also alleged that both John and Jeanne personally discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (b)-(e)(1)).*fn5
A jury found the defendants guilty of first degree murder. The jury also found the firearm enhancement to be true as to John.
The trial court sentenced John to a prison term of 50 years to life, and sentenced Jeanne to a term of 25 years to life.
Both defendants filed timely notices of appeal.
A. The trial court did not err in instructing the jury on an alternative theory of felony murder
John contends that his conviction for first degree murder must be reversed because the trial court erred in providing the jury with an instruction on an alternative theory of felony murder which, John maintains, was "legally inadequate."
During trial, the court and counsel discussed whether the court should instruct the jury on felony murder based on the underlying felony of kidnapping. The court and all counsel agreed that the state of the evidence could support a finding that John knew that Rintalan was alive at the time he put Rintalan in the trunk. The prosecutor pointed out that the evidence also could support a finding that Rintalan was alive when John removed him from the trunk. Defense counsel said that he could not recall testimony to that effect, and the court and the parties agreed to revisit the matter at a later time.
When the court and counsel addressed the issue again, they discussed whether the evidence could support a finding that John harbored multiple intents, or rather, whether the evidence supported only a finding that the kidnapping was incidental to the killing, in that John's intent in dumping Rintalan's body was only to dispose of evidence and to avoid detection. The trial court ultimately determined that the jury could find that John had independent, but concurrent, intents and therefore, instructed the jury on both felony murder and premeditated murder.
2. Legal standards pertaining to felony murder
All murder that is committed in the perpetration of, or attempt to perpetrate, certain enumerated felonies, including kidnapping, is murder of the first degree. (§ 189.) "For felony murder, the required mental state is the specific intent to commit the underlying felony. [Citation.] The killing is considered to be committed in the perpetration of the underlying felony if the acts ...