California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County, No. 07WF2103 William Froeberg, Judge.
Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Luis Alberto Ramirez
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Jose Roberto Armendariz.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
Luis Alberto Ramirez and Jose Roberto Armendariz were tried together on two counts of murder arising out of a gang “hit-up” they carried out with a third participant, Luis Menchaca, who testified at the trial after reaching a plea agreement with prosecutors. Both Ramirez and Armendariz were 16 years old when the crimes were committed, and the jury returned verdicts of first degree murder against both on count 1 (Penal Code §§ 187, 189; all further statutory references are to this code unless otherwise designated) and second degree murder (§ 187) against both on count 2. The jury also found Armendariz guilty on a third count which alleged he was an active participant in a criminal street gang (§ 186.22, subd. (a)), a verdict also rendered against Ramirez in an earlier trial. The jury also found that both Ramirez and Armendariz committed the crimes for the benefit of a criminal street gang and both vicariously discharged a firearm causing death. The jury also found true four special circumstances alleged against Ramirez only.
The prosecution’s theory was that Ramirez was the actual shooter in the two murders, while Armendariz was guilty either as a direct aider and abettor of murder, or because murder was a natural and probable consequence of lesser crimes he intended to aid and abet. The court sentenced Ramirez to state prison for life without the possibility of parole (LWOP), plus 65 years to life. The court sentenced Armendariz to state prison for 90 years to life.
Ramirez argues the court abused its discretion by ordering the cases consolidated for trial, and thereafter denying motions to sever them, since he and Armendariz were relying on inconsistent and antagonistic defenses. Armendariz joins in that argument. One of the tensions in the joint trial surrounded the issue of admitting evidence of prior incidents in which Armendariz had been the alleged shooter: Ramirez favored admission of the prior incidents and relied on them to suggest Armendariz was the actual shooter in the incident at issue in this case; by contrast, Armendariz opposed admission and on appeal asserts the court abused its discretion by allowing it.
Ramirez also claims the prosecutor engaged in misconduct, while Armendariz claims his own counsel was ineffective. Both defendants assert instances of instructional error and both argue their sentences constituted cruel and unusual punishment. We affirm Ramirez’s convictions, but reverse Armendariz’s conviction of first degree murder on count 1.
We find Ramirez’s assertion the court erred by refusing to sever the cases for trial, as well as his claim of prosecutorial misconduct, to be without merit. We also reject Armendariz’s assertion the court erred by allowing the jury to consider evidence of his prior uncharged acts. But we agree with Ramirez’s contention the court erred by instructing the jury it could not consider evidence of Armendariz’s prior uncharged acts for purposes of Ramirez’s defense, unless it first determined those prior incidents had been proven true by a preponderance of the evidence. As Ramirez argues, it is the prosecutor’s burden to prove guilt beyond a reasonable doubt; requiring a defendant to prove facts which tend to undermine the elements of the crime charged against him by a preponderance of the evidence is inconsistent with that burden. Moreover, the instruction was flawed for another reason as well, in that it erroneously informed the jury its consideration of the evidence in connection with Ramirez’s defense was optional. While the jury is certainly free to weigh the evidence before it, it is not free to simply disregard evidence which tends to cast doubt on the prosecution’s case. We conclude, however, that the instructional error was not prejudicial to Ramirez, and as a consequence, it does not qualify as a basis for reversing his convictions.
We also agree with Armendariz’s contention that the court erred in its instruction to the jury on both direct aider and abettor liability and the natural and probable consequences doctrine. Direct aider and abettor liability is based on the mental state of the aider and abettor – he must have personally premeditated a murder in order to be convicted as an aider and abettor of a premeditated murder. Here, the instructions did not adequately inform the jury that Armendariz’s culpability for first degree murder as a direct aider and abettor must be based on his own premeditation, and not on the premeditation of Ramirez.
The natural and probable consequences doctrine, by contrast, assumes the aider and abettor intended only to commit some lesser crime, and hence precludes his personal premeditation of a charged murder. Thus the potential culpability of an aider and abettor for premeditated murder under the natural and probable consequences doctrine depends on the premeditation of the perpetrator and necessarily hinges on whether a reasonable person in his position should have known that the perpetrator’s commission of premeditated murder was a natural and probable consequence of the lesser crime the aider and abettor intended to commit. Here, the jury was asked only to determine whether murder was a natural and probable consequence of one or more of the lesser crimes intended by Armendariz; it was not asked to determine whether Ramirez’s premeditation of that murder was also a natural and probable consequence. Absent a factual finding that Ramirez’s premeditation of the murder was part of the natural and probable consequences of the lesser crime(s) intended by Armendariz, Armendariz cannot be held culpable for that premeditation. Because the jury instructions on these points were flawed, the jury’s verdict of first degree murder against Armendariz on count 1 must be reversed.
Finally, we conclude the sentences imposed on both defendants amounted to cruel and unusual punishment, in light of their youth at the time of the crimes. We consequently reverse both sentences and remand the case to the trial court with directions to (1) resentence Ramirez to a term which allows him a meaningful opportunity to obtain release within a reasonable period based on demonstrated maturity and rehabilitation, and (2) resentence Armendariz to a term which allows him a similar opportunity, after it resolves count 1 alleged against him.
1. The Shooting
On August 27, 2007, just after midnight, Oliver Martinez and Michelle Miller were shot dead – only moments after they had the misfortune of encountering Ramirez, Armendariz, Menchaca and Ramirez’s girlfriend, Diane Estrada.
Earlier in the evening, Menchaca, who was 18 at the time, met up with Ramirez and Armendariz, both age 16, at the home of another friend. All three of them, along with two other males who were also present in the home, were members of a gang known as Down Crowd. Armendariz, who is left-handed, had a cast on his left hand that evening, as a result of breaking several fingers in a fall from his bicycle. During the visit, they passed around a.38 caliber gang gun, after which Ramirez put it into his pocket. The group then went to the home of a different friend, where they consorted for awhile before Menchaca, Ramirez, Armendariz and Estrada decided to walk to a restaurant to get some food.
As the group walked over a freeway overpass, Menchaca saw a man and a woman – Martinez and Miller – walking onto the overpass behind them. Menchaca stopped and pretended to tie his shoe while the others waited, so that the man and woman would pass them. As they passed, Menchaca recognized the man as a member of Crow Village – a rival gang. After the couple passed, Menchaca said to the others, “Lets go hit them up, ” which means to ask someone what gang they belong to.
The group then approached Martinez and Miller, and Menchaca called out “Ay” to get their attention. When Martinez turned around, Menchaca asked him if he had a lighter. At this point, Ramirez was standing next to Menchaca, while Armendariz and Estrada were standing approximately a foot behind them. Martinez then responded “Aren’t you that pussy from dick cravers?” – using a derogatory term for Down Crowd to convey disrespect. Menchaca replied “Fuck Crow”; Ramirez pulled out the.38 and shot Martinez, then Miller, and then shot Martinez again multiple times. Both Martinez and Miller were killed.
Menchaca, Ramirez, Armendariz and Estrada all ran back across the overpass, and while they ran, Estrada called a friend to come pick them up. Menchaca told Ramirez to give him the expended rounds from the gun, and he then dug a small hole in the dirt and buried them. While Menchaca was doing that, Ramirez reloaded the gun. The four then continued walking while they waited for their friend to arrive. Just about the time their friend arrived, a police car drove up. The officer inside trained his searchlight on the group and told them to stop. Menchaca and Armendariz ran, although Armendariz stopped for a moment next to a parked car and hid the.38 under one of its tires. Ramirez and Estrada remained where they were, although the officer saw Ramirez throw something.
Menchaca and Armendariz were apprehended shortly thereafter, hiding in some bushes in a nearby backyard. After other officers arrived, the first officer searched the area where he had seen Armendariz stop next to the parked car, and retrieved the.38. He also searched the area where he had seen Ramirez throw something, and found a pair of black gloves in a hedge. DNA found on one of the gloves was consistent with Ramirez. DNA found on the gun was consistent with all three, and both Menchaca and Ramirez had a small amount of gunshot residue on their right hands. Armendariz, whose dominant hand was in a cast, was not tested for gunshot residue.
2. Menchaca’s Plea Deal and Ramirez’s Initial Trial
Menchaca, the only adult in the group, was charged with two counts of murder along with Ramirez and Armendariz. He subsequently entered an agreement to plead guilty to lesser charges and receive a sentence of 16 years in prison, in exchange for his testimony against the others.
The prosecution initially chose to try Ramirez and Armendariz separately and successfully moved to have their cases severed. The first trial proceeded against Ramirez alone, and Menchaca testified on behalf of the prosecution. Over the objections of prosecutors, Ramirez was allowed to question Menchaca about prior shooting incidents involving Armendariz. After Menchaca initially refused to answer those questions, the prosecution, out of concern his testimony would otherwise be stricken, granted Menchaca immunity for his own involvement in those incidents. The jury in that first trial convicted Ramirez of active participation in a street gang, but could not reach a verdict on either of the two murder counts. The court declared a mistrial.
3. The Consolidated Trial of Ramirez and Armendariz
Following the mistrial in Ramirez’s case, the prosecution moved to consolidate his case with Armendariz’s for trial. The motion to consolidate was premised on the evidence of prior uncharged shooting incidents involving Menchaca and Armendariz, which Ramirez had brought out through Menchaca’s testimony in the first trial. Although the prosecution had objected to consideration of those prior incidents evidence in Ramirez’s first trial, it argued it would be able to rely on that evidence of earlier shooting incidents in a joint trial, as a means of establishing both defendants’ “motive, intent, knowledge, malice and common scheme or plan in committing the murders charged in this case.” Although the consolidation motion was opposed by both defendants, it was granted. Thereafter, both defendants moved to sever their trials, and the court denied those motions.
Over Armendariz’s strenuous objection, the court ruled that evidence of the three prior uncharged shooting incidents Menchaca had testified to during Ramirez’s first trial would also be admitted in the joint trial.
In addition to describing those prior uncharged incidents, Menchaca also testified about the crimes at issue in this case; he admitted his own involvement and identified Ramirez as the shooter. Armendariz then testified in his own defense; Ramirez did not.
In his testimony, Armendariz denied being a member of Down Crowd, although he acknowledged attending some of its parties. He also denied involvement in any of the three prior uncharged acts. Armendariz acknowledged being present on the night of the shootings at issue, but claimed he had no idea any shooting might occur when he agreed to go get something to eat with Menchaca. He admitted he later went along with Menchaca’s suggestion they hit up their two victims, but claimed he believed they would do nothing more than beat them up if they proved to be gang affiliated. Armendariz’s mother also testified, and stated that while Armendariz had the cast on his left hand, he could neither write nor hold a spoon with that hand.
The jury found both defendants guilty of murder on counts 1 and 2, and with respect to both, it “further... affix[ed] the degree thereof” as “Murder in the First Degree” on count 1, and “Murder in the Second Degree” on count 2, but without revealing how it arrived at those verdicts.
At the sentencing hearing, counsel made brief arguments, and Armendariz addressed the court directly. Before pronouncing sentence, the court made a brief statement regarding gangs: “I think society as a whole is fed up with several things, sexual assaults against children, drivers driving intoxicated that kill people, and gang violence. And there have been rather substantial changes in the law to try to convince people that those things will not be tolerated in society. [¶] It is no secret that the State of California is at war with gangs. It is no secret that anyone who joins a gang that they are likely to be shot, killed, stabbed or end up in prison for the rest of their lives. Why in the world someone would join a gang is beyond my comprehension. [¶] The greatest writer in the English language, William Shakespeare, wrote about gangs in Romeo and Juliet. Unfortunately, they’ve been with us forever. Some people get it, some don’t. Those who don’t get it, unfortunately suffer the consequences.” (Italics added.)
The court then pronounced sentence. As to Ramirez, it stated that “the only sentence option” for the first degree murder conviction is “a term of life without the possibility of parole.” It then imposed sentence as follows: “Defendant Ramirez is hereby sentenced to a term in state prison of life without the possibility of parole on count one. The defendant is sentenced to a consecutive term of 25 years to life in the state prison for the enhancement under 12022.53(d) and (e)(1). [¶] Defendant is sentenced on count two to a consecutive indeterminate term of 15 years to life and to a consecutive term of 25 years to life for the 12022.53(d) and (e)(1) enhancement. [¶] The 186.22(b) enhancement is stricken for sentencing purposes for both counts one and two because the defendant is sentenced to life without possibility of parole. [¶] Sentence on count three [street gang participation] shall be the midterm of two years. However, such sentence is stayed pursuant to Penal Code section 654.” (Italics added.) The net sentence imposed was LWOP, plus 65 years to life.
The court then sentenced Armendariz as follows: “[O]n count one to a term of 25 years to life in the state prison along with a consecutive term of 25 years to life for the 12022.53(d) and (e)(1) enhancement. [¶] On count two, the defendant’s sentenced to a consecutive term of 15 years to life in the state prison together with a consecutive term of 25 years to life for the 12022.53(d) and (e)(1) enhancement. [¶] The 186.22(b)(1) enhancement for each count is stricken pursuant to Penal Code section 12022.53(e)(2). As to count three [street gang participation], defendant is sentenced to the midterm of 14 years. However, that sentence is stayed pursuant to Penal Code section 654.” (Italics added.) The net sentence imposed was 90 years to life.
1. Admissibility of Prior Incidents Evidence Against Armendariz
We begin with Armendariz’s contention the court prejudicially erred by allowing the jury to hear evidence of the three prior uncharged acts, in which Menchaca had described him as being the actual shooter in prior gang “hit up” scenarios. Only Armendariz opposed admission of this evidence; Ramirez favored admission because he viewed the evidence as supporting his contention that Armendariz was the actual shooter in this case as well.
According to Menchaca’s testimony, the first uncharged incident occurred around July 2007. Menchaca testified he went with Ramirez and Armendariz to a high school in a rival gang area, carrying the.38 and planning to shoot at rival gang members. Ramirez waited near some houses while Menchaca and Armendariz approached some young males. Armendariz asked them “do you want to die?” while Menchaca said “Fuck Tacos.” Armendariz then shot the gun, although no one was injured. Jose Ceja, an associate of the Hard Times gang, also testified about the incident. He stated he was with two friends when two males standing behind some bushes began shouting at them, asking where they were from. At some point, the two males were joined by a third. When Ceja replied “nowhere, ” he heard the males say “Do you want to die” before hearing a gunshot. He then heard “Fuck Tacos. Down Crowd, ” as he and his friends ran. Ceja could not identify any of the males.
The second uncharged incident occurred in August 2007. According to witness John Smith, he heard several gunshots a few houses away from his home. He claimed the shots sounded like they came from a.38 gun. After an officer arrived at the scene, several Wicked Ones gang members were arrested, and officers also discovered graffiti which suggested Wicked Ones gang members were showing disrespect to Down Crown. Menchaca testified that Armendariz had told him he ran into some gang members in that same area and had engaged in a “shootout” with them.
The third uncharged incident occurred on August 25, 2007. Menchaca testified that he, Ramirez, Armendariz and two others drove into Hard Times territory with the.38, looking for rival gang members “to do them harm.” When they spotted somebody near a wall, bending down, they thought he was “tagging the wall, ” Armendariz allegedly fired “one or two rounds.” They then departed the neighborhood. Another witness, a resident of mobile home park in the area, also testified. He stated that on August 25, 2007, he heard gunshots in his neighborhood, and called the police. He later found that bullets had struck his mobile home.
Armendariz argues the court abused its discretion under Evidence Code section 352, because the evidence of these prior incidents, which he denied, was highly prejudicial and not particularly probative because there was no dispute as to his identity and participation in the incident at issue. He also argues the evidence was inadmissible under Evidence Code section 1101. We disagree.
Evidence Code section 1101, subdivision (a), states the general rule that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” However, subdivision (b) of that same statute creates an exception to the general rule: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.” (Evid. Code § 1101, subd. (b).)
Armendariz acknowledges the evidence of the prior uncharged acts would have been admissible to establish any of these facts, but then simply asserts that “[n]one of these things were at issue here because everyone put [him] at the scene of the crime, and there was ample evidence that [he] associated with the Down Crowd gang.” But in the immediately preceeding paragraph of his brief, Armendariz admits the opposite when he claims “[t]he only truly ...