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People v. Garcia

California Court of Appeals, Fourth District, Second Division

June 9, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
ERIC GEOVANIE GARCIA et al., Defendants and Appellants.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from the Superior Court of Riverside County, No. SWF021408 Angel M. Bermudez, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Eric Geovanie Garcia.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Navarro.

J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant Samuel Navarro.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

Defendants are all related. Defendants Samuel Navarro and Joseph Navarro are brothers. Defendant Eric Geovanie Garcia is the brother of Lizbeth Robles, who is Samuel Navarro’s girlfriend; thus, Garcia is Samuel Navarro’s de facto brother-in-law.

At one time, Garcia and Joseph Navarro were friends with Luis Arceo, who lived next door to Samuel Navarro. However, during a party at Arceo’s home, Arceo got into a fistfight with them. Garcia threatened to “get” Arceo.

About two weeks later, there was another party at Arceo’s home. After midnight, when most of the guests had left, defendants and a group of their

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friends and relatives came over to Arceo’s property. Garcia confronted Arceo, called him a “bitch” and a “rat, ” and threatened to kill him.

Meanwhile, Robles and/or Joseph Navarro, along with others, accosted one of the party guests. Either Robles or Joseph Navarro threw the first punch. After that, each of the three defendants was seen with a knife, and each was seen hitting or stabbing someone. By the time defendants left, three party guests had been stabbed. Two died; one survived.

After a jury trial, Garcia and Joseph Navarro were found guilty on two counts of first degree murder and sentenced to 50 years to life in prison. Samuel Navarro was likewise found guilty on two counts of first degree murder; in addition, however, solely as to him, a multiple-murder special circumstance was found true, and he was found guilty on one count of unpremeditated attempted murder. He was sentenced to life without the possibility of parole, plus nine years.

Defendants now contend:

1. The trial court erred by failing to instruct that provocation can reduce first degree murder to second degree murder.

2. The trial court erred by instructing on the legally impossible theory of conspiracy to commit attempted murder.

3. The trial court erred by instructing on the legally impossible theory of conspiracy to commit second degree implied malice murder.

4. The trial court erred by instructing that a “direct” aider and abettor could be guilty of premeditated first degree murder even if he did not personally premeditate.

5. The trial court erred by instructing that, under the natural and probable consequences doctrine, an aider and abettor could be convicted of first degree murder as long as “[m]urder” was a natural and probable consequence of the target offense.

6. The natural and probable consequences doctrine is unconstitutional.

7. The prosecutor committed misconduct by misstating the law in closing argument.

8. Because Garcia and Joseph Navarro were juveniles when the crimes were committed, their sentences of 50 years to life constitute cruel and unusual punishment.

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9. The trial court miscalculated Joseph Navarro’s pretrial actual custody credit.

10. The trial court erred by imposing a parole revocation restitution fine on Garcia and Joseph Navarro in the amount of $10, 000.

11. The abstract of judgment is erroneous because it fails to reflect the fact that the trial court ordered direct victim restitution liability to be joint and several.

As the People concede, the contentions regarding pretrial actual custody credit and the parole revocation restitution fine are well-taken. We will modify the judgment accordingly. Otherwise, we find no prejudicial error.

I

FACTUAL BACKGROUND

A. Introduction.

The issues raised in this appeal largely turn on which of the defendants stabbed which of the victims and on defendants’ respective mental states at the time. Accordingly, we highlight the facts relating to those matters; we pretermit the facts relating to whether defendants actually stabbed anybody at all.

B. May 12 and 13, 2007: The Mother’s Day Party.

Defendant Samuel Navarro and Lizbeth Robles, the mother of his child, lived in a converted barn on Ritter Avenue in Homeland. Luis Arceo and his family lived in a trailer next door to the barn.

On May 12 and 13, 2007 - Mother’s Day - there was a party at the trailer. At the time, Arceo was 16. Those attending the party included defendant Joseph Navarro, then aged 17, who was Samuel Navarro’s younger brother. They also included defendant Eric Garcia, also aged 17, who was Robles’s brother. Arceo considered both Garcia and Joseph Navarro to be his friends.

Future victim Miguel Salas, then aged 18 or 19, was also at the party. During a card game, Salas’s girlfriend asked for another card by saying, “Hit me.” Joseph Navarro responded with the double entendre, “I’d hit that.” After he said this several times, Salas admonished him to be respectful. Garcia intervened, saying, “If you have a problem with Joe, then you have a problem with me.”

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Garcia challenged Salas to a fight. All four youths went outside. Garcia punched Salas in the face. After about a minute of one-on-one fighting, Joseph Navarro jumped in and started hitting Salas from behind. Arceo thought this was unfair, so despite his friendship with Garcia and Joseph Navarro, he jumped in on Salas’s side.

Garcia was mad at Arceo. He threatened to “get” Arceo and said that Arceo was going to “pay.” After the fight, Samuel Navarro and Robles arrived; they took Joseph Navarro and Garcia back to the barn.

Later, as Salas was leaving, Garcia and Joseph Navarro returned, this time accompanied by Samuel Navarro. They started hitting Salas again. This time, Arceo’s sister called the police; Arceo spoke to them. By the time the police arrived, the fight was over.

After this incident, Arceo stopped hanging out with Garcia and Joseph Navarro.

C. May 27 and 28, 2007: The Birthday Party.

On May 27 and 28, 2007, a birthday party for Arceo’s younger sister was held at the trailer.

Around 12:40 a.m., after most of the guests had left, Garcia, Joseph Navarro, Samuel Navarro, Robles, and others associated with them walked over toward the trailer area. Garcia yelled, “I want [Salas] and [Arceo] up here.” He called Arceo a “bitch” and a “rat.”[1] He added, “I’m gonna kill you.” He was jumping up and down and staring at Arceo. He yelled “Paramount.” Samuel Navarro similarly shouted “East Side Paramount” and “East Los.” Arceo started “screaming things back at them.” He “cocked his hands up” and said, “I’m right here.” He, too, was jumping up and down.

Robles and other members of defendants’ group walked up to party guest Juan Pablo Medina Martinez.[2] Martinez said they were being disrespectful. He added, “Calm down. There’s kids here.”[3] Robles replied, “I don’t give a fuck. My kids are here, too.” She then “socked” Martinez in the face. Martinez pushed her down.[4]

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“They all” started hitting Martinez. Samuel Navarro either hit or stabbed him in the stomach. Two other people also hit or stabbed him.[5] Martinez fell to the ground. Samuel Navarro tried to stab him in the face, but he put up his left arm to block the blow; as a result, he was stabbed in the left wrist.

“[E]verybody started running.” Among others, Salas and party guest Brice Moreno (aged 20) tried to run away. Garcia and Joseph Navarro - both holding knives - chased after them.

Garcia caught up with Moreno and hit or stabbed him from behind. Moreno screamed and fell to the ground. He said, “No, please, stop. I got two kids.” Garcia stood over him and continued to hit or stab him. Joseph Navarro also started hitting or stabbing Moreno.

Salas came up behind Garcia and started punching him, saying, “Leave [Moreno] alone.” Garcia turned around and hit or stabbed Salas in the torso. Salas fell to the ground. Samuel Navarro “[got] on top of [Salas]” and hit or stabbed him in the hip.

Garcia was holding “a knife that was full of blood.” He called Arceo’s name. Arceo said, “I’m right here.” Garcia said, “I found you, bitch.” On seeing the knife, Arceo ran; Garcia chased him, but he got away.

Meanwhile, Martinez got up and walked out to the street. He saw Garcia walking back toward the trailer, holding a knife. Garcia asked, “Do you want me to kill you?” Martinez replied, “I was already stabbed.... Let me die.” Garcia kept walking.

Martinez lay down and started to pass out. Suddenly, Robles punched him in the mouth and screamed, “That’s what you get, motherfucker.” Someone else heard Robles say, “That’s what you guys get for disrespecting and being cop callers.”

Defendants got into Samuel Navarro’s car and left. Samuel Navarro was smiling and laughing.

When the police arrived, they asked Salas, “Who stabbed you?” He pointed toward the barn.

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Salas died from a single stab wound to the left chest. He also had a second, nonfatal stab wound in the left hip.

Moreno had only a single stab wound, to the chest, which proved fatal.[6]

Martinez was hospitalized for over three weeks, but he survived. He had one stab wound in his stomach and another in his left armpit; both of these were “life-threatening.” In addition to the stab wound in the left wrist, mentioned earlier, he had relatively minor stab wounds to his back and legs.

At the scene, the police found two Frost Cutlery brand knives on the ground. However, when these knives were tested for blood, no blood was found on them. One empty Frost Cutlery knife box was also found at the scene.

Inside the barn, the police found three more empty Frost Cutlery knife boxes. Samuel Navarro’s fingerprint was on one of these boxes.

Finally, in a box in the garage of the barn, the police found “assorted” Frost Cutlery knives, still in boxes.[7]

The next day, Garcia turned himself in. Samuel Navarro and Joseph Navarro, however, immediately fled the area. Five months later, Samuel Navarro was arrested in Los Banos (in the Central Valley). At first, he gave the police a false name. Almost two years after the incident, Joseph Navarro was arrested in Arizona. He, too, initially gave the police a false name.

II

PROCEDURAL BACKGROUND

After a jury trial, all three defendants were found guilty on count 1 (murder of Salas) and count 2 (murder of Moreno). (Pen. Code, § 187, subd. (a).) Both murders were found to be of the first degree. (Pen. Code, § 189.) A multiple murder special-circumstance allegation (Pen. Code, § 190.2, subd. (a)(3)) was found true as to Samuel Navarro but not true as to the other two defendants. Similarly, Samuel Navarro was found guilty on count 3 (attempted murder of Martinez), but the other two defendants were found not

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guilty. (Pen. Code, § 187, subd. (a), 664). The jury found that the attempted murder was not premeditated, willful, and deliberate. (Pen. Code, § 664.)

III[*]

IV

CONSPIRACY INSTRUCTIONS

Defendants raise two related challenges to the conspiracy instructions.

A. Additional Factual and Procedural Background.

At the request of the prosecution, [8] the trial court gave the following conspiracy instructions:

1. CALCRIM No. 416, “Evidence of Uncharged Conspiracy”:

“The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.

“To prove that a defendant was a member of a conspiracy in this case, the People must prove that:

“1. The defendant intended to agree and did agree with one or more of the other defendants to commit murder and/or attempted murder;

“2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit murder and/or attempted murder;

“3. One of the defendants or all of them committed at least one of the following overt acts to accomplish murder and/or attempted murder: armed themselves on or about May 28, 2007; and/or confronted a group of individuals... on or about May 28, 2007; and

“4. At least one of these overt acts was committed in California. [¶]...[ΒΆ]

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“To decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit murder and/or attempted murder, please refer to the separate instructions that I will give you on those crimes.

“The People must prove that the members... of the alleged conspiracy had an agreement and intent to commit murder and/or attempted murder. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit one or more of those crimes. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime.

“An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.

“You must decide as to each defendant whether he was a member of the alleged conspiracy.

“The People contend that the defendants conspired to commit one of the following crimes: Murder and/or attempted murder. You may not find a defendant guilty under a conspiracy theory unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes, and you all agree which crime he conspired to commit. You must also all agree on the degree of the crime.” (Italics added.)

2. CALCRIM No. 417, “Liability for Coconspirators’ Acts”:

“A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime.

“A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act.

“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a

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consequence is natural and probable, consider all of the circumstances established by the evidence.

“A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan.

“To prove that the defendant is guilty of the crime[s] charged in Counts 1 through 3 [sic], the People must prove that:

“1. The defendant conspired to commit one of the following crimes: assault with a deadly weapon and/or assault with force likely to produce great bodily injury;

“2. A member of the conspiracy committed murder to further the conspiracy, and

“3. Murder was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit.”

B. Instructions on the Legally Impossible Theory of Conspiracy to Commit Attempted Murder.

Defendants contend the trial court erred by instructing on the legally impossible theory of conspiracy to commit attempted murder.

The crime of conspiracy to commit attempted murder does not exist. “This is because the crime of attempted murder requires a specific intent to actually commit the murder, while the agreement underlying [such a] conspiracy... contemplate[s] no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder.” (People v. Iniguez (2002) 96 Cal.App.4th 75, 79 [116 Cal.Rptr.2d 634].) "Stated another way, under a traditional conspiracy approach, one cannot conspire to try to commit a crime. An agreement to commit a crime is required, even if nothing more than an overt act is ultimately done.” (People v. Johnson (2013) 57 Cal.4th 250, 264 [159 Cal.Rptr.3d 70, 303 P.3d 379].)

Here, the jury was not dealing with conspiracy as a substantive offense (Pen. Code, § 182), but rather with conspiracy as a theory of vicarious criminal liability. (See In re Y.R. (2014) 226 Cal.App.4th 1114, 1121 [172 Cal.Rptr.3d 554].) Nevertheless, for the reasons stated in Iniguez and Johnson, a conspiracy to commit attempted murder is likewise a legal impossibility.

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The People concede the error but argue that it was harmless. We agree.

“‘A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. [Citations.]’ [Citation.] But such error is not structural and is subject to harmless-error review under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. [Citations.]” (People v. Gerber (2011) 196 Cal.App.4th 368, 391 [126 Cal.Rptr.3d 688].) "In this situation, to find the error harmless, a reviewing court must conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory....” (People v. Chun (2009) 45 Cal.4th 1172, 1203 [91 Cal.Rptr.3d 106, 203 P.3d 425].)

Regarding attempted murder, the jury was instructed that it required the “inten[t] to kill [a] person” along with “at least one direct but ineffective step toward killing [that] person....” (CALCRIM No. 600, italics added.) Thus, assuming the jury followed this instruction, it would have concluded - much as did the court in Iniguez - that conspiracy to commit attempted murder was a legally (and thus factually) impossible theory of vicarious liability.

Of course, it is possible that, in an attempt to make sense out of the seeming contradiction, the jury interpreted a conspiracy to commit attempted murder as meaning a conspiracy to attempt to commit murder - in other words, an agreement to take a step toward killing a person, with the intent to kill that person, but also with the awareness that the step might not be effective. However, this would simply be a conspiracy to commit murder. Under that interpretation, the claimed error vanishes.

Finally, it is not impossible that the jury completely misunderstood or failed to follow the instructions and based the verdict on its own notions of rough justice. “In analyzing the prejudicial effect of error, however, an appellate court does not assume an unreasonable jury. Such an assumption would make it virtually impossible to ever find error harmless. An appellate court necessarily operates on the assumption that the jury has acted reasonably, unless the record indicates otherwise.” (People v. Guiton (1993) 4 Cal.4th 1116, 1127 [17 Cal.Rptr.2d 365, 847 P.2d 45].)

We also find this error harmless for a second, alternative reason. As to Garcia and Joseph Navarro, the jury found the multiple-murder special circumstance not true. As it was correctly instructed (CALCRIM No. 702), the multiple-murder special circumstance requires that the defendant either (1) was the actual killer or (2) acted with the intent to kill. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 45 [158 Cal.Rptr.3d 585, 302 P.3d 981].) While it did find these defendants guilty of both murders, evidently the jury could not find, beyond a reasonable doubt, that they were actual killers; more, importantly

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it also could not find, beyond a reasonable doubt, that they had the intent to kill. Accordingly, it must not have found that they entered into legally impossible conspiracy to commit attempted murder.[9]

Admittedly, as to Samuel Navarro, the jury found the multiple-murder special circumstance true. Thus, it presumably found that he had the intent to kill.[10] However, since the jury failed to find, beyond a reasonable doubt, that the other defendants had the intent to kill, evidently it did not find that he conspired with any of them to commit attempted murder.

We therefore conclude that the error in instructing on conspiracy to commit attempted murder was harmless under any standard.

C. Instructions on the Legally Impossible Theory of Conspiracy to Commit Second Degree Implied Malice Murder.[*]

V

AIDING AND ABETTING INSTRUCTIONS

Defendants raise a number of related challenges to the aiding and abetting instructions.

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A. Additional Factual and Procedural Background.

At the request of the prosecution, the trial court gave the following aiding and abetting instructions:

1. CALCRIM No. 400, “Aiding and Abetting: General Principles”:

“A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime.

“A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.

“Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.”

2. CALCRIM No. 401, “Aiding and Abetting: Intended Crimes”:

“To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:

“1. The perpetrator committed the crime of murder; and/or assault with a deadly weapon and/or assault with force likely to produce great bodily injury, and/or attempted murder;

“2. The defendant knew that the perpetrator intended to commit the crime.

“3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and

“4. The defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime.

“Someone aids and abets a crime if he or she... knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”

3. CALCRIM No. 403, “Natural and Probable Consequences (Only Non-Target Offense Charged)”:

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“To prove that the defendant is guilty of murder, the People must prove that:

“1. The defendant is guilty of assault with force likely to produce great bodily injury or assault with a deadly weapon;

“2. During the commission of assault with force likely to produce great bodily injury or assault with a deadly weapon, a co-participant in that assault with force likely to produce great bodily injury or assault with a deadly weapon committed the crime of murder; AND

“3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the murder was a natural and probable consequence of the commission of the assault with force likely to produce great bodily injury or assault with a deadly weapon.

“A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander.

“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the assault with force likely to produce great bodily injury or assault with a deadly weapon, then the commission of murder was not a natural and probable consequence of assault with force likely to produce great bodily injury or assault with a deadly weapon.

“To decide whether the crime of murder was committed, please refer to the separate instructions that I will give you on those crimes.

“The People are alleging that the defendant originally intended to aid and abet assault with force likely to produce great bodily injury or assault with a deadly weapon.

“If you decide that the defendant aided and abetted one of these crimes and that murder was a natural and probable consequence of that crime, the defendant is guilty of murder. You do not need to a[gree][11] about which of these two crimes the defendant aided and abetted.”

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B. Direct Aiding and Abetting Without Personally Premeditating.[*]

C. Aiding and Abetting First Degree Murder Under the Natural and Probable Consequences Doctrine.

Defendants contend the trial court erred by instructing that, under the natural and probable consequences doctrine, an aider and abettor could be convicted of first degree murder as long as “[m]urder” - rather than first degree murder - was a natural and probable consequence of the target offense. In their view, an aider and abettor cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine unless premeditated murder was reasonably foreseeable. Likewise, an aider and abettor cannot be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine unless lying-in-wait murder was reasonably foreseeable.

1. First degree premeditated murder.

We start with whether the instructions erroneously failed to state that an aider and abettor could not be convicted of premeditated murder under the natural and probable consequences doctrine unless premeditated murder was reasonably foreseeable.

While this appeal was pending, the California Supreme Court reframed this argument. It held that an aider and abettor cannot be convicted of premeditated first degree murder “under the natural and probable consequences doctrine” at all; rather, there must be proof that the aider and abettor premeditated personally. (People v. Chiu (2014) 59 Cal.4th 155, 166-167 [172 Cal.Rptr.3d 438, 325 P.3d 972].) Here, under Chiu, the trial court erred by instructing that an aider and abettor who did not premeditate - indeed, who did not intend to kill at all - could be convicted of first degree murder under the natural and probable consequences doctrine.

The People concede that this was error; they simply argue that it was harmless, for three reasons. Once again, the error can be deemed harmless only if we “conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory....” (People v. Chun, supra, 45 Cal.4th at p. 1203; see People v. Delgado (2013) 56 Cal.4th 480, 490 [154 Cal.Rptr.3d 621, 297 P.3d 859].)

First, the People note that CALCRIM No. 521, as given in this case, started out by stating, “The defendant has been prosecuted for first degree

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murder under two theories: (1) the murder was willful, deliberate, and premeditated and (2) the murder was committed by lying in wait.” They also note that, because the jury found the special circumstance not true as to Garcia and Joseph Navarro, it must have found that they lacked the intent to kill. (See pt. IVB., ante.) They conclude that the jury must have found these defendants guilty of first degree murder on a lying-in-wait theory, not a premeditation theory.

This assumes that CALCRIM No. 521 limited the jury to these two theories of first degree murder and ruled out a natural and probable consequences theory. The instruction does not support this interpretation. It specified how an individual defendant could be found guilty of first degree murder based on his own premeditation. In other words, it defined the guilt of a perpetrator. The separate aiding and abetting instructions then specified how another defendant could be found guilty of aiding and abetting first degree murder by the perpetrator. Those instructions did not require that the aider and abettor personally premeditate.[12] Indeed, CALCRIM No. 403 stated the opposite - that a person who intended only an aggravated assault could nevertheless be guilty of murder (presumably including first degree murder).

Second, the People also note that, in closing argument, the prosecutor indicated that a defendant could not be found guilty of first degree murder on a natural and probable consequences theory; he could be found guilty, at most, of second degree murder. We recognize that a reviewing court can consider a prosecutor’s closing argument in deciding whether an ambiguous or potentially confusing instruction was likely to mislead the jury. (E.g., People v. Ainsworth (1988) 45 Cal.3d 984, 1032-1033 [248 Cal.Rptr. 568, 755 P.2d 1017].) Once again, however, the prosecutor’s closing argument cannot cure an erroneous instruction simply by contradicting it. (People v. James (2000) 81 Cal.App.4th 1343, 1364, fn. 10 [96 Cal.Rptr.2d 823] ["We do not consider comments by counsel during closing argument to determine whether the error in the instruction was cured.”].)

Third, the People argue that the evidence of lying in wait was “strong.” We cannot agree. “Lying-in-wait murder consists of three elements: ‘“‘(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage....’

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[Citations.]”’ [Citation.]” (People v. Russell (2010) 50 Cal.4th 1228, 1244 [117 Cal.Rptr.3d 615, 242 P.3d 68]. fn. omitted.) There was evidence of concealment of purpose - namely the empty knife boxes, which indicated that defendants and their cohorts armed themselves in advance. However, any period of watching and waiting was brief, at best. Garcia started yelling for Arceo almost immediately. Meanwhile, Robles (or Joseph Navarro) confronted Martinez. Immediately after she (or he) punched Martinez, the knives came out.

We acknowledge that “‘... “[t]he precise period of time is... not critical.” [Citation.]... [A] few minutes can suffice.’ [Citations.]” (People v. Russell, supra, 50 Cal.4th at p. 1244.) Thus, there was sufficient evidence of lying in wait; indeed, defendants do not contend otherwise. Even so, however, the evidence was at least equally consistent with a scenario in which defendants provoked a fight pretty much immediately. To hold otherwise would mean that bringing a concealed weapon to a fight constitutes lying in wait, as a matter of law.

Nevertheless, we conclude that the error was harmless for a fourth reason: As we will explain, the jury’s verdicts demonstrate that it did find defendants guilty of first degree murder on a lying-in-wait theory, not a premeditation theory.

Even under defendants’ interpretation of the instructions, the jury could find each of them guilty of first degree premeditated murder in one of four ways:

1. The defendant was the perpetrator and personally premeditated.

2. The defendant was a direct aider and abettor, in that: (1) another defendant was the perpetrator, (2) the defendant intended to aid and abet the perpetrator in committing murder, and (3) the defendant and/or the perpetrator premeditated.

3. The defendant was liable under the natural and probable consequences doctrine, in that: (1) another defendant was the perpetrator, (2) the defendant intended to aid and abet the perpetrator in committing aggravated assault, and (3) the perpetrator premeditated.

4. The defendant was a conspirator, in that: (1) another defendant was the perpetrator, (2) the defendant conspired with the perpetrator to commit aggravated assault, attempted murder, or murder, and (3) the perpetrator premeditated.

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To put it more simply: To rely on a premeditation theory, the jury had to find that somebody premeditated.

Again, however, the jury found that neither Garcia nor Joseph Navarro had the intent to kill. A fortiori, it must have found that they did not premeditate. The jury did find Samuel Navarro guilty of the attempted murder of Martinez; thus, it evidently found that he had the intent to kill. However, it also found that the attempted murder was not willful, deliberate, and premeditated. On these facts, we see no way the jury could have found that, even though Samuel Navarro did not premeditate as to Martinez, he did premeditate as to Moreno or Salas.[13] Thus, no matter who the jury found to be the perpetrator of the two murders - indeed, even if it was unable to decide who the perpetrator was - its verdict shows that it did not find that any of the defendants premeditated.

In sum, under the instructions, as given, the only way the jury logically could have come to the verdicts that it did was by relying on a lying-in-wait theory.

2. First degree lying-in-wait murder.

According to defendants, Chiu applies to both premeditated and lying-in-wait murder. Hence, in their view, an aider and abettor cannot be convicted of lying-in-wait murder under the natural and probable consequences doctrine at all; rather, there must be proof that he or she personally lay in wait.

Chiu, however, dealt exclusively with premeditated murder. It did not so much as mention lying-in-wait murder. It also acknowledged that ordinarily, “[a]ider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature. [Citations.] ‘By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all.... [Citation.]” (People v. Chiu, supra, 59 Cal.4th at p. 164.) We are bound by the Supreme Court’s earlier opinions (e.g., People v. Prettyman (1996) 14 Cal.4th 248, 262-263 [58 Cal.Rptr.2d 827, 926 P.2d 1013]), except to the extent that they were overruled in Chiu with respect to premeditated murder. Indeed, even after Chiu, the Supreme Court has stated that, under the

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natural and probable consequences doctrine, “an aider and abettor, like a conspirator, is liable for unintended crimes.” (People v. Smith (2014) 60 Cal.4th 603, 615 [180 Cal.Rptr.3d 100, 337 P.3d 1159].)

We also note that the Supreme Court’s reasons for carving out premeditated murder in Chiu do not apply to lying-in-wait murder. It explained that the mental state of “willfulness, premeditation, and deliberation... is uniquely subjective and personal” and “has no effect on the resultant harm. The victim has been killed regardless of the perpetrator’s premeditative mental state.” (People v. Chiu, supra, 59 Cal.4th at p. 166, citation omitted.)

Unlike premeditation, lying in wait is not really a mental state at all. It requires concealment of purpose, a substantial period of watching and waiting, and a surprise attack. Thus - except to the extent that the perpetrator must have an illegal “purpose” - it consists of conduct. “The statute assumes that if the means of the murder are by lying in wait, those means adequately establish the murder as the equivalent of a premeditated murder without any additional evidence of the [perpetrator]’s mental state.” (People v. Hyde (1985) 166 Cal.App.3d 463, 475 [212 Cal.Rptr. 440].) In addition, lying in wait does have an effect on the subsequent harm. Admittedly, in hindsight, the victim is just as dead. However, the perpetrator’s concealment of purpose, watching and waiting, and surprise attack all make it more likely that the attack, when it comes, will succeed.

Hence, we conclude that an aider and abettor can be guilty of lying-in-wait murder under the natural and probable consequences doctrine without any evidence that he or she personally lay in wait (or intended the perpetrator to lie in wait).

This brings us to whether the instructions should have stated that an aider and abettor could not be convicted of lying-in-wait murder under the natural and probable consequences doctrine unless lying-in-wait murder was reasonably foreseeable.

Under People v. Chiu, supra, 59 Cal.4th 155, no such instruction was required. There, the Supreme Court stated: “We have never held that the application of the natural and probable consequences doctrine depends on the foreseeability of every element of the nontarget offense. Rather, in the context of murder under the natural and probable consequences doctrine, cases have focused on the reasonable foreseeability of the actual resulting harm or the criminal act that caused that harm. [Citations.]” (Id. at p. 165, fn. omitted & italics added.) It cited cases that asked whether a “shooting” or a “fatal shooting” (rather than a murder) was a natural and probable consequence of the target crime. (Ibid., citing, among others, People v. Ayala (2010)

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181 Cal.App.4th 1440, 1450 [105 Cal.Rptr.3d 575]; People v. Gonzales (2001) 87 Cal.App.4th 1, 10 [104 Cal.Rptr.2d 247]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 [37 Cal.Rptr.2d 596].) In fairness, we note that this language in Chiu was dictum. “However, even dictum from our Supreme Court is considered ‘highly persuasive.’ [Citations.]” (People v. Brown (2000) 77 Cal.App.4th 1324, 1336 [92 Cal.Rptr.2d 433].)[14]

Defendants further argue that, assuming they can be found guilty of first degree murder under the natural and probable consequences doctrine, even if lying in wait was not foreseeable, then the natural and probable consequences doctrine is unconstitutional. This argument presumes that the reasonable foreseeability of the lying in wait is an element of the offense for purposes of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348]. For the reasons already discussed, however, we disagree; the relevant element of the offense is that the perpetrator did, in fact, lie in wait, regardless of whether the lying in wait was reasonably foreseeable.

VI, VII[*]

VIII

CRUEL AND UNUSUAL PUNISHMENT

Garcia and Joseph Navarro contend that, because they were juveniles when the crimes were committed, their sentences of 50 years to life constitute cruel and unusual punishment.

A. Additional Factual and Procedural Background.

Garcia and Joseph Navarro were each convicted on two counts of first degree murder. The prescribed sentence on each count was 25 years to life.

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(Pen. Code, § 190, subd. (a).) Realistically, [17] the only discretionary sentencing decision the trial court had to make was whether to run the sentences concurrently or consecutively. (Pen. Code, § 669, subd. (a).)

Counsel for Garcia requested concurrent sentencing. The prosecutor urged the trial court to sentence Garcia consecutively. He asserted that a sentence of 50 years to life “realistically prohibit[s] any chance of parole... he will be 67 before he’s ever eligible for parole. And, life being what it is in prison, I think it would be unrealistic that at 67 years old somebody might be paroled or that they would reach their parole date.” Thus, he argued, “I’m asking the court to sentence him to 50 to life to effectively erase any chance that he has of ever being granted parole.” He indicated, however, that he was “not opposed” to sentencing Joseph Navarro concurrently.

The trial court concluded that, for multiple reasons, which it stated on the record, it should “impose the maximum allowable as to each defendant by law.” It therefore ran both Garcia’s and Joseph Navarro’s sentences consecutively.

B. General Legal Background.

“[F]or a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” (Graham v. Florida (2010) 560 U.S. 48, 74 [176 L.Ed.2d 825, 130 S.Ct. 2011].) Even in a homicide case, “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” (Miller v. Alabama (2012) 567 U.S. ___, ___ [183 L.Ed.2d 407, 132 S.Ct. 2455, 2460].) Miller declined to impose “a categorical bar on life without parole for juveniles....” (Id. at p. ___ [132 S.Ct. at p. 2469].) It held, however, that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” (Id. at p.___ [132 S.Ct. at p. 2475.) Such mitigating circumstances potentially include (1) the juvenile offender’s “chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences”; (2) “the family and home environment that surrounds him”; (3) “the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him”; (4) “incompetencies associated with youth - for example, his inability to deal with police officers or prosecutors... or his incapacity to assist his own

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attorneys”; and (5) the possibility of rehabilitation. . . ." (Id. at p. ___ [132 S.Ct. at p. 2468].)

C. Forfeiture.

Garcia and Joseph Navarro did not raise their present contention in the trial court. Accordingly, the People argue that it has been forfeited.

Ordinarily, a claim of cruel and unusual punishment is “fact specific”; as a result, it is forfeited if not raised below. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [44 Cal.Rptr.2d 796]; accord, People v. Kelley (1997) 52 Cal.App.4th 568, 583 [60 Cal.Rptr.2d 653]; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8 [33 Cal.Rptr.2d 894].)

Here, however, Garcia and Joseph Navarro rely on Miller’s rule flatly forbidding a mandatory sentence of life without parole for a juvenile. (Miller v. Alabama, supra, 567 U.S. ___ [123 S.Ct. 2469].) Thus, they are raising a pure question of law, presented on undisputed facts. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1368 [171 Cal.Rptr.3d 421, 324 P.3d 245].) This constitutes an exception to the general forfeiture rule. Therefore, we may consider it for the first time on appeal. (People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3 [143 Cal.Rptr.3d 674, 279 P.3d 1143]; People v. Hines (1997) 15 Cal.4th 997, 1061 [64 Cal.Rptr.2d 594, 938 P.2d 388].)

D. Merits.

We begin with the question of whether Garcia's and Joseph Navarro’s sentences are the equivalent of life without parole.

In People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291], our Supreme Court held that a sentence of 110 years to life is the equivalent of life without parole for purposes of Miller. (Caballero, supra, at pp. 265, 268.) It looked to whether the defendant’s “parole eligibility date... falls outside [his] natural life expectancy....” (Id. at p. 268; see id. at p. 267, fn. 3.) It defined life expectancy as “the normal life expectancy of a healthy person of defendant’s age and gender living in the United States.” (Id. at p. 267, fn. 3; see People v. Perez (2013) 214 Cal.App.4th 49, 57-58 [154 Cal.Rptr.3d 114].)

In 2007, when Garcia turned himself in, he was 17. We take judicial notice[18] that the life expectancy for a Hispanic male aged 17 was approximately 62 years. (National Vital Statistics Reports, United States Life Tables,

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2010 (Nov. 6, 2014) at p. 29, available at <http://www.cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_07.pdf> [as of June 9, 2015].) Thus, his expected year of death was approximately 2069 (i.e., at age 79). His parole eligibility date, after applying presentence custody credits, was approximately 2057 (i.e., at age 67). In sum, then, his life expectancy was substantially beyond his parole eligibility date.

Joseph Navarro differs from Garcia mainly because he was not arrested until 2009, when he was 19. The life expectancy for a Hispanic male aged 19 was approximately 60 years (National Vital Statistics Reports, United States Life Tables, 2010, supra, at p. 29), so like Garcia, his expected year of death was also approximately 2069 (i.e., at age 79). His parole eligibility date, after applying presentence custody credits, was approximately 2059 (i.e., at age 69). Thus, his life expectancy, too, was substantially beyond his parole eligibility date.

Joseph Navarro argues that “a sentence that gives a juvenile offender a remote mathematical chance of parole at the very end of his life... goes against everything Miller stands for.” Not so. Any rule that applies only to juvenile offenders inherently requires some Procrustean line-drawing. For example, a defendant aged 17 years, 364 days at the time of the offense can invoke Miller; a defendant aged 18 years cannot. (People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221 [165 Cal.Rptr.3d 183].) Similarly, “[t]here is a bright line between LWOP's and long sentences with eligibility for parole if there is some meaningful life expectancy left when the offender becomes eligible for parole.” (People v. Perez, supra, 214 Cal.App.4th at p. 57.) Even assuming a defendant must be given the benefit of a close call, here both defendants’ life expectancies exceeded their minimum parole periods by at least 10 years - more than one-eighth of their projected lifespans; this is a substantial period.

Garcia relies on the prosecutor’s statement in the trial court that the sentence “realistically prohibit[s] any chance of parole....” However, the prosecutor was not talking about the application of Miller, which, we repeat (see part VIII.B, ante), defense counsel never raised below. Rather, he was trying to explain why a sentence of 50 years to life, rather than 25 years to life, was nevertheless appropriate.

Separately and alternatively, we also reject the cruel and unusual punishment claim because a sentence of 50 years to life was discretionary, not mandatory. The trial court also had the alternative of sentencing these defendants concurrently, and thus to only 25 years to life. They do not argue that a sentence of 25 years to life is the equivalent of life without parole. In

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deciding whether to sentence concurrently or consecutively, the trial court could consider “[a]ny circumstances in aggravation or mitigation....” (Cal. Rules of Court, rule 4.425(b)); see Cal. Rules of Court, rules 4.408(a), 4.421, 4.423.) These could include youth, along with all the other mitigating circumstances listed in Miller.

Finally, Joseph Navarro argues that his sentence “may be” cruel and unusual under the California constitution, and therefore his trial counsel rendered ineffective assistance by failing to raise this issue. (Capitalization altered; bolding omitted.) However, the record, as it now stands, does not indicate that the sentence was cruel and unusual under this standard. Thus, he cannot show either that his defense counsel was ineffective or that the omission was prejudicial.

We therefore conclude that Garcia and Joseph Navarro have not shown that their sentences constituted cruel and unusual punishment.

IX-XI[*]

XII

DISPOSITION

The judgments are modified, as follows:

1. Joseph Navarro is awarded 14 additional days of pretrial actual custody credit, for a total of 1,269.

2. Garcia’s and Joseph Navarro’s parole revocation restitution fines are reduced to $480.

The judgments as modified are affirmed.

The clerk of the superior court is directed to prepare new sentencing minute orders and new abstracts of judgment for Garcia and Joseph Navarro, reflecting these modifications. The new abstracts shall specifically recite that these defendants’ liability for direct victim restitution is joint and several with respect to each other and with respect to Samuel Navarro. The clerk of the

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superior court is further directed to forward certified copies of the amended abstract to the Director of the Department of Corrections and Rehabilitation.

Hollenhorst, J., and McKinster, J., concurred.


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