Court: Superior County: San Bernardino Judge: Michael Knish, Commissioner Super. Ct. No. FVA024527 Ct.App. 4/1 D055698
The opinion of the court was delivered by: Corrigan, J.
Defendant Perla Isabel Gonzalez (Perla) recruited her brother and her boyfriend to assault Roberto Canas-Fuentes (Canas).*fn1 After Canas fended off a knife attack and gained the upper hand in the fight, Perla handed the boyfriend a loaded rifle. Canas wrested the rifle away and shot the boyfriend dead. The jury convicted Perla of the attempted premeditated and deliberate murder of Canas and, based on the provocative act doctrine, the first degree murder of her boyfriend.*fn2
We recently held that similar circumstances could support a conviction of first degree murder if the defendant personally acted willfully, deliberately, and with premeditation during an attempted murder. (People v. Concha (2009) 47 Cal.4th 653, 658 (Concha).) Here, substantial evidence supports Perla's conviction for the murder of her boyfriend. As in Concha, the trial court erred in instructing the jury on the requirements for premeditated and deliberate first degree murder; however, we conclude the error was harmless beyond a reasonable doubt.
Joan Curiel and her husband, Canas, had a three-year-old daughter together. When they separated, Curiel moved into the residence of Ricardo Gonzalez (Ricardo). Ricardo is defendant Perla's brother. Curiel's two other children and her mother, Rosalba Osguera-Alvarez (Osguera), also moved into Ricardo's home. The relationship between Canas and Ricardo was volatile. The two men had argued several times on the telephone and had fought physically at least once. Canas and Curiel shared custody of their daughter, but Canas typically picked up the child away from Curiel's residence in order to avoid encountering Ricardo.
Canas worked as an emergency room technician. On the evening of May 21, 2005, Curiel called Canas, arranging to bring her mother to the hospital for treatment. After Osguera returned home, Curiel and Ricardo began arguing about whether Curiel had lied to him about "partying" with Canas while Ricardo was in Mexico. During the argument, Canas called and spoke to Curiel. According to Ricardo, Canas bragged that he and Curiel had been intimate while Ricardo was away. Canas understood Curiel to say she did not want Ricardo in the home, and Canas could hear children screaming in the background. Concerned for his daughter, Canas drove to the residence and arrived just as Curiel was driving away with the children. Canas yelled at Ricardo, but Ricardo ignored him and went after Curiel in his own car. Canas followed. He drove between their two vehicles, blocking Ricardo's progress, and yelled at him, "What . . . are you thinking? The kids are in the car. Knock it off." Ricardo drove away in the opposite direction, and Canas followed to make sure Ricardo did not resume his pursuit of Curiel and the children.
Later that evening, after Ricardo and Curiel had both returned home, several members of Ricardo's family gathered to discuss the altercation. In addition to Ricardo and Curiel, the group included Ricardo's mother and grandmother; his brother Jorge and Jorge's girlfriend; his sister Perla and Perla's boyfriend, Fernando Morales. Perla, the defendant here, said that if anything happened to Ricardo, the family would "kick [Canas's] ass." Meanwhile, Canas continued to call the house and argue with Ricardo. Finally, Jorge answered the telephone and agreed to fight Canas at a nearby street corner. Jorge waited at the corner with his girlfriend, Perla, and Morales, the ultimate decedent. Morales had brought a BB gun and shot it out the car window to pass the time. They waited for 15 or 20 minutes then left when Canas did not arrive.
The next morning, Perla picked up Jorge at his house and told him they were going back to the street corner to "beat up" Canas. Curiel had told Perla that Canas would be picking up his daughter at the corner, and Perla wanted to intercept him there. Jorge brought a baseball bat, with which he planned to break the windows of Canas's car. When Jorge got in Perla's car, he saw a light brown rifle lying in the backseat area. Perla then drove back to her house to pick up her boyfriend, Morales. Jorge told Morales about the plan to assault Canas, and Morales agreed to help if Canas got the upper hand. After a brief stop at Ricardo's house to confirm that Canas had not yet picked up his daughter, the group drove to the intersection where they had waited for Canas the night before. They eventually decided to leave, but Perla's car would not start. Jorge ran back to Ricardo's house for help, leaving Perla and Morales waiting at the car. On the way, Jorge passed Osguera walking Canas's daughter to the corner to meet her father. Curiel's 13-year-old daughter walked behind them. When she joined them at the corner, she saw Perla and Morales standing next to a car with the hood raised. Perla approached Osguera and told her to leave, but the grandmother refused.
After about 10 minutes, Canas arrived. He noticed Perla and Morales standing next to a car with the hood up. He had never seen them before and did not know them. As a result, he had no reason to expect any difficulty. When Canas opened his car door and beckoned for his daughter, Osguera hastily approached and told Canas to leave. Morales walked up to the car at the same time and said, "Hey, puto, I heard you had a problem." When he realized Morales was not joking, Canas told Osguera to put his daughter in his car and leave. As she did so, Morales began punching Canas.
Canas fought back. Morales then pulled a knife with a three- to four-inch blade from his waistband and lunged at Canas, stabbing him in the face. Perla stood about 10 feet away, near the rear of her car, watching the fight. When Morales advanced on him again, Canas ducked and grabbed Morales's legs from under him, hurling him onto his back. Morales quickly rose and ran toward Perla's car. Canas saw Perla reach inside the car and grab a rifle. She met Morales near the back of the car, "cocked" the rifle by pulling back the hammer, then handed it to Morales.*fn3
Seeing this, Canas ran at Morales, who had his back turned. During the ensuing struggle, the rifle discharged several times. Canas was hit in the hand, bicep, and thigh but managed to gain control of the rifle. Perla ran away.*fn4 Morales also turned to run. Afraid for his life, Canas fired the rifle in Morales's direction at least three times, until it ran out of ammunition. Morales fell to the sidewalk. Canas went to Morales and, after ensuring he was unarmed, checked his pulse. Canas still did not know his assailants or why they had attacked him.
Curiel drove to the scene and found Canas sitting on the sidewalk near Morales's body. When she asked what had happened, a shaken Canas yelled, "He shot me, so I shot him back." Curiel began driving home but soon returned to the scene with Jorge and Perla. Perla screamed at Canas to help her carry Morales into the car. He refused because Morales had "just tried to kill [him]." Perla and Jorge pulled Morales into the car, and Curiel drove them to the hospital. Morales died there from gunshot wounds to the chest and abdomen.
Canas remained at the scene. When police arrived, they recovered the rifle from him. Several expended shell casings and a knife were found in the street. Perla's car was still at the location. Its rear license plate was obscured with an "X" fashioned from red duct tape. A roll of similar tape and a baseball bat were found inside the car. Although Morales's sister testified that she saw a knife at the crime scene after the shooting, crime scene experts had found no second knife at the scene, and Canas testified that he was unarmed.*fn5
Perla was charged with the attempted murder of Canas and the murder of Morales. (Pen. Code, §§ 664, 187.)*fn6 The information charged that she had personally used and intentionally discharged a firearm in committing the attempted murder. (§ 12022.53, subds. (b), (c).) The jury convicted her of the first degree murder of Morales and the attempted premeditated and deliberate murder of Canas, with personal use of a firearm. It rejected the allegation that she had intentionally discharged a gun in connection with the attempted murder. Perla was sentenced to prison for 25 years to life on the murder conviction, and a concurrent life term and 10-year firearm enhancement for the attempted murder.
The judgment was affirmed. The Court of Appeal unanimously concluded, inter alia, that Perla's conviction of the first degree murder of Morales was supported by substantial evidence. The panel also unanimously determined that the jury had been erroneously instructed. The jury was not told that to convict Perla of first degree murder under the provocative act doctrine it had to find that she personally premeditated and deliberated the attempted murder of Canas. (See Concha, supra, 47 Cal.4th at p. 666.) The court disagreed about the effect of the error. The majority held the error harmless while the dissenting justice found it prejudicial.
We granted review limited to the issues of whether sufficient evidence supports the conviction for first degree murder and whether the instructional error was harmless beyond a reasonable doubt. The evidentiary sufficiency question turns on the provocative act doctrine and its analytical place in the law of homicide, which we discuss in some detail. We conclude the evidence here was sufficient and, although the jury was given a potentially misleading instruction on this topic, the error was harmless. We therefore affirm the judgment of the Court of Appeal.
I. Substantial Evidence Supports the Murder Conviction
In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Cervantes, supra, ...