California Court of Appeals, Second District, Fifth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA361075 Thomas I. McKnew, Jr., Judge.
[Copyrighted Material Omitted]
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Keith H. Borjon and Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
The victim was shot and killed following a dispute over drugs and money. Defendant, who was not alleged to be the shooter, was prosecuted on separate theories of aiding and abetting: (1) first degree felony murder committed during the course of a kidnapping; and (2) second degree murder with target offenses of assault and kidnapping. In response to a jury question about the definition of second degree murder, and over defense objection, the trial court instructed the jurors they need not agree on a theory of guilt, as long as all the jurors believed defendant committed murder. The jury convicted defendant of first degree murder.
In the published portion of this opinion, we hold the trial court’s response to the jury’s question was error to the extent it (1) sanctioned a verdict that was not unanimous as to degree, and (2) advised the jury defendant, rather than the actual killer, acted with malice aforethought. We therefore reverse the conviction of first degree murder and remand to allow the prosecution to either retry defendant or accept a reduction of the offense to second degree murder.
The jury found defendant and appellant Cesar Omar Sanchez guilty in count 1 of the first degree murder of Marco Antonio Parra (Pen. Code, § 187, subd. (a)),  in count 2 of the attempted carjacking of Jovani Ortega (§§ 664, 215, subd. (a)), in count 3 of the second degree robbery of Ortega (§ 211), and in count 4 of possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found true allegations that defendant personally used a firearm as to counts 2 and 3 (§ 12022.53, subd. (b)).
Defendant was sentenced to 25 years to life in prison on count 1. On count 2, the trial court imposed a consecutive term of 10 months (one-third the midterm of 30 months), with an enhancement of 10 years on the firearm use allegation. With respect to count 3, defendant was sentenced to a concurrent term of one year (one-third the midterm of three years) enhanced by 10 years for use of a firearm. The court stayed sentencing on count 4.
Defendant contends the trial court erroneously instructed the jury that it did not have to be unanimous as to the theory of guilt to find him guilty of murder. We agree.
In the unpublished portion of the opinion, we hold the Attorney General is correct that the sentences in counts 2, 3, and 4 were unauthorized and must be corrected. We remand the matter to the trial court for resentencing on counts 2 through 4.
Trial Testimony Regarding the Kidnapping and Murder
Laura Ramos was in a long-term relationship with Parra, her sister Marcela was married to Danny Chavez, and her sister Martha was married to Luis Arturo Garcia. The couples were friendly with one another and interacted socially. Both Laura and Martha testified at trial under a grant of immunity.
On the morning of April 22, 2008, Martha received a call from the wife of Walter Quevedo, a friend of Garcia’s, asking about Garcia’s whereabouts. Later that morning, Garcia, sounding concerned, called Martha at work and mentioned that he and Parra had a dispute about money. A little later, Marcela called Martha and also mentioned the dispute. Marcela asked Martha to meet her at the parking lot of a shopping center on Alameda and Florence. Martha left work and drove her Dodge Ram to the parking lot. About 15 minutes later, Marcela arrived with Chavez and the women’s mother in a gray pickup truck. Chavez appeared very concerned and worried. He said he needed to talk to Parra to clear up an accusation by Quevedo that Parra had taken over $1 million.
After Chavez left at around 2:00 p.m., Martha called Laura, told her that there was something going on involving Parra, and asked Laura to meet her at the parking lot. About 15 or 20 minutes later, Laura arrived in her Mercedes. Martha told Laura that Chavez and Garcia were trying to get in touch with Parra, and that Parra supposedly took $1.5 million from Quevedo. Laura was shocked and called Parra to tell him about the accusation. Laura told Parra to meet them at the parking lot.
Parra arrived at the parking lot in his van about 10 minutes later and parked next to Laura’s car. He was acting normally and did not appear to be worried or angry. He got into the cab of Martha’s truck, where everyone else was sitting, and they discussed the missing money. Parra told Marcela to call Chavez. Marcela called Chavez, said Parra wanted to talk to him, and told him where they were. Parra called his cousin, “Pula, ” and told him, “Some money’s missing and now they are trying to blame me.” Parra seemed very concerned about the money problem.
About 20 to 30 minutes later, Chavez arrived in his truck at the parking lot. Garcia arrived a minute later and parked his Toyota 4Runner, blocking Martha’s truck. Garcia and at least two other men got out of Garcia’s 4Runner with handguns. Parra got out of Martha’s truck and tried to run. The gunmen stopped Parra and told him to get in a car parked behind Martha’s truck. One of the gunmen had a long-sleeve dark blue shirt.
At the same time, several men exited a gold four-door sedan parked behind Martha’s truck. Parra asked, “Why so many?” Parra called his cousin “Pula” and quickly said, “They picked me up. They picked me up.” The men walked Parra to the gold sedan. The women in Martha’s truck got out and screamed for the men to stop and leave Parra alone. Laura screamed at Garcia, “Tell them to stop. Why are they taking him like this?” Garcia looked angry and did not try to prevent the men from taking Parra.
Martha saw one person in the driver’s seat of the gold sedan. Parra was pushed into the back seat of the car. Some of the men got into the car with Parra and quickly drove away. Martha heard a gunshot coming from the car before it exited the parking lot.
Huntington Park Police detectives responding to a call of “shots fired with one down” found the dead body of Parra lying face up on the northbound lane of Albany Street. The detectives did not see anyone fleeing the scene on foot or in a car. There was blood near the body, but no trail of blood in the vicinity. Officers recovered three.45-caliber shell casings and one.45-caliber bullet at the scene. All three casings were fired from the same semiautomatic pistol. An autopsy showed that Parra died as a result of four gunshot wounds.
Approximately 90 minutes after Parra was taken from the parking lot, Laura went to the sheriff’s station, where she was interviewed by Sergeant Mitchell Loman. Laura said she spoke to her sisters about the missing money, and that three cars arrived at the parking lot with a “bunch of guys” after Marcela called Chavez. She described a heavy gunman with a long-sleeved blue shirt and said that Parra had been shoved into a sedan by several men. After she was informed Parra had been murdered, Laura said that Parra had been accused of taking $1.5 million from Quevedo, a truck driver, the night before Parra’s murder. She said the money did not belong to Quevedo, but that he was transporting it. Another person was supposed to pick up the money. Parra used to collect money from Quevedo and deliver it to somebody else, but Parra had nothing to do with the missing money. Laura said Chavez and Garcia may have been dealing drugs with Quevedo.
On June 17, 2008, Martha selected Jesus Corrales from a photographic six-pack lineup as one of the gunmen who forced Parra into the sedan. She wrote on the form, “I believe this is the guy that was holding the gun. He was wearing a baseball cap.” She had never seen Corrales before the kidnapping. Martha also said there could have been three men who got out of her husband’s vehicle, but she only remembered two gunmen.
On November 20, 2008, Martha was shown other photographic six-pack lineups, which included defendant and Castrellon. Martha did not identify anyone in the lineups. Laura was also shown the six-pack lineups and selected Castrellon as one of the men involved in the kidnapping. Laura wrote on the identification form, “This guy was the one that was pushing [Parra] inside the car. He was wearing a long-sleeve, dark blue [shirt]... [and] was holding a gun, pointing it to [Parra]’s right side.”
In a recorded interview in November 2008, Castrellon stated that Chavez asked defendant to intimidate somebody ...