Kevin DeNoce, Judge Superior Court County of Ventura (Super. Ct. No. 2006036885)
The opinion of the court was delivered by: Hoffstadt, J.*fn3
CERTIFIED FOR PUBLICATION
A jury unanimously agrees that a defendant is guilty of murder. Must all jurors either unanimously agree defendant is the killer, or unanimously agree that he aided and abetted the killer? Appellant Raul Becerra Quiroz (Quiroz) argues that Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) requires all jurors to agree on the same theory of legal liability. We disagree. We also reject Quiroz's arguments that the People's request for an aiding and abetting instruction deprived him of his right to counsel and that such an instruction may be given only if the People name the killer. We further conclude that Quiroz's remaining arguments lack merit. We affirm his conviction for first-degree murder.
FACTS AND PROCEDURAL HISTORY
Early in the morning of August 27, 2005, Brian Szostek (Szostek) was shot four times while sitting in the rear passenger's seat of a gold Pontiac. He was dumped in an alley in Oxnard and died soon thereafter.
Quiroz and Szostek were childhood friends. Several months prior to his death, Szostek had called Quiroz for the telephone numbers of two drug dealers. Unbeknownst to Quiroz, Szostek was cooperating with law enforcement. Both dealers were subsequently arrested after drug buys Szostek arranged. One of those dealers, Hector Flores, later asked Quiroz about Szostek's connection to undercover officers. Flores closed their discussion by asking, "Are we on?" Quiroz replied, "Right on, dude."
The night before the shooting, Quiroz borrowed the gold Pontiac, picked up Szostek, and dropped him off at a house in Oxnard. Later that evening, Szostek and three other men drove around in the Pontiac for hours. Quiroz's presence in the car was disputed. Quiroz admitted to two fellow inmates that he had been present (and had shot Szostek), and Quiroz's account was corroborated by one of the car's passengers and by two other witnesses who had seen Quiroz or someone who looked "very familiar" to Quiroz in the car that night. At trial, however, the passenger recanted his prior statement and said Quiroz was not present.
Just hours after the shooting, Quiroz was driving around in the Pontiac with the same passenger who initially said Quiroz was present when Szostek was shot that morning. Quiroz showed up uninvited at the home of one of the two people who had picked up Szostek's body at the scene and transported it to the coroner's office. Quiroz also vacuumed up the glass of the Pontiac's window shattered by the gunshots. Quiroz then returned the car to its owner, and told him to "lay low."
The People charged Quiroz with the first-degree murder of Szostek (Pen. Code, § 187, subd. (a))*fn1 , and being a felon in possession (former § 12021, subd. (a)(1), repealed by Stats. 2010, ch. 711, § 4). The People also alleged Quiroz personally used a firearm in committing the murder (former § 12022.5, subd. (a)(1)).
In the midst of voir dire, the People submitted proposed jury instructions, including an aiding and abetting instruction. After the People rested their case-in-chief and after Quiroz had called two of his witnesses, the trial court held its initial jury instruction conference. At that conference, the People again requested that the jury be instructed on the theories of aiding and abetting liability and direct liability. Over Quiroz's objection, the court tentatively ruled that substantial evidence supported Quiroz's liability as an aider and abettor. Quiroz then called another six witnesses.
At the final conference on jury instructions, Quiroz renewed his objection to any aiding and abetting instruction. He did not request an instruction requiring juror unanimity in selecting between aiding-and-abetting liability and direct liability. The trial court instructed the jury on direct and aiding and abetting liability. During his closing argument, Quiroz criticized the People for shifting its story from Quiroz as the shooter, to Quiroz as an aider and abettor.
The jury found Quiroz guilty of murder and being a felon-in-possession, but split 11 to 1 on whether Quiroz personally used a firearm. The court declared a mistrial on the firearm allegation, and sentenced Quiroz to 28 years to life in prison.
Quiroz argues that the trial court erred in instructing the jury on aiding and abetting liability because (1) the People requested the instruction so late in the trial as to deny him the effective assistance of his counsel; and (2) the People never identified the shooter. Quiroz further contends that any aiding and abetting instruction, even if properly given, should have been accompanied by an instruction requiring the jurors to agree unanimously that Quiroz was either the principal or an aider and abettor.
I. Timeliness of Request for Instruction
Quiroz asserts that the People unconstitutionally interfered with his right to counsel by proposing its alternative, aiding-and-abetting theory too late in the trial proceedings. Quiroz contends that his counsel had no ability to respond to this new theory due to this late notice. Drawing on Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 (Sheppard) and cases addressing state interference with the right to counsel, Quiroz argues that this error is structural and automatically reversible. Because this involves questions of constitutional law and mixed questions that are predominantly legal, we review Quiroz's contentions de novo. (See Redevelopment Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 74; People v. Waidla (2000) 22 Cal.4th 690, 730-731.) We conclude that Quiroz had ample notice, and that his deprivation of counsel claim accordingly lacks merit.
Under California's practice of short-form pleading, an instrument charging a defendant as a principal is deemed to charge him as an aider and abettor as well. (§ 971.) This "notice as a principal is sufficient to support a conviction as an aider and abettor . . . without the accusatory pleading reciting the aiding and abetting theory . . . ." (People v. Garrison (1989) 47 Cal.3d 746, 776, fn.12; People v. Ardoin (2011) 196 Cal.App.4th 102, 131 (Ardoin).) Because Quiroz was charged with murder as a principal, he received adequate notice under California law.
A criminal defendant also has a federal constitutional right to "'be informed of the nature and cause of the accusation.'" (Gray v. Raines (9th Cir. 1981) 662 F.2d 569, 571.) It is unsettled whether California's short-form pleading practice, without more, confers constitutionally adequate notice of the People's decision to proceed on an implicitly charged alternative legal theory. (Compare People v. Scott (1991) 229 Cal.App.3d 707, 716-717 [holding it does] with People v. Lucas (1997) 55 Cal.App.4th 721, 737-738 (Lucas) [holding it may not].) Nevertheless, we have deemed notice of a new theory to be constitutionally sufficient when the defendant is further alerted to the theory by the evidence presented at the preliminary hearing (Scott, supra, at p. 717; People v. Jenkins (2000) 22 Cal.4th 900, 1024 (Jenkins)), or by the People's express mention of that theory before or during trial sufficiently in advance of closing argument (People v. Crawford (1990) 224 Cal.App.3d 1, 8-9 [initial, pretrial instructional conference]; Lucas, supra, at p. 738 [same]; Stephens v. Borg (9th Cir. 1995) 59 F.3d 932, 936 [five days prior to closing argument]). What due process will not tolerate is the People affirmatively misleading ...