Filed 12/10/14 P. v. Beltran CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066357
Plaintiff and Respondent,
v. (Super. Ct. No. FVA801476)
FIDEL BELTRAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Ronald M. Christianson, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne
G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
In this case, which involves what defendant Fidel Beltran refers to as his "mercy
killing" of his friend and coworker, Baraquel Alonzo Cruz, the San Bernardino County District Attorney filed an information in June 2009 charging Beltran with (1) murder
(count 1: Pen. Code,1 § 187, subd. (a)); (2) making a criminal threat (count 2: § 422;
alleged victim: Jose Jesus Hernandez); and (3) dissuading a witness (Jose Jesus
Hernandez) (count 3: § 136.1, subd. (c)(l)). As to count 1, the information alleged that,
in committing the murder, Beltran personally and intentionally discharged a firearm
causing great bodily injury and death within the meaning of section 12022.53,
subdivision (d) (hereafter section 12022.53(d)); he personally and intentionally
discharged a firearm within the meaning of section 12022.53, subdivision (c) (hereafter
section 12022.53(c)); and he personally used a firearm within the meaning of section
12022.53, subdivision (b) (hereafter section 12022.53(b)).
At the close of the evidence phase of the trial, the court granted Beltran's section
1118.1 motion for acquittal as to count 2 (making a criminal threat) and dismissed that
count.
The jury found Beltran guilty of second degree murder as a lesser included offense
of count 1 and found to be true all three of the firearm enhancements. The jury found
Beltran not guilty of dissuading a witness.
The court thereafter sentenced Beltran to an aggregate prison term of 40 years to
life, consisting of an indeterminate term of 15 years to life for the second degree murder
conviction, plus a consecutive indeterminate term of 25 years to life for the section
12022.53(d) firearm enhancement.
1 All further statutory references are to the Penal Code. 2 Beltran raises two contentions on appeal. First, he contends his second degree
murder conviction must be reversed because the victim, Cruz, was Beltran's friend; Cruz
asked him to assist him in committing suicide by shooting him; and, thus, the court
prejudicially erred by denying his request for a jury instruction on the law of voluntary
manslaughter as a lesser included offense of murder based on the absence of malice.
Second, Beltran contends that, if this court affirms his murder conviction, the
section 12022.53(d) firearm enhancement of 25 years to life must be stricken, and a
determinate term of 20 years imposed in its place under section 12022.53(c) because (1)
"the plain language of [section 12022.53(d)] indicates that it applies 'to any person other
than an accomplice,'" (2) Cruz was an accomplice because he "was an aider and abettor
as well as a coconspirator to the crime of his killing" in that "[he] asked [Beltran] to kill
him," and thus (3) the court erred in preventing the jury from determining whether Cruz
was an accomplice by modifying the jury instruction on section 12022.53(d) "by
eliminating the need for the jury to determine whether Cruz was 'any person other than an
accomplice.'"
For reasons we shall explain, we affirm both Beltran's murder conviction and the
related section 12022.53(d) firearm enhancement. Accordingly, we affirm the judgment.
3 FACTUAL BACKGROUND
A. The People's Case
On August 13, 2008,2 at around 7:30 p.m., officers from the San Bernardino
County Sheriff's Department were dispatched to a remote dirt road in an unincorporated
area of Fontana. There they found a man's body lying face up on the ground. The man
was wearing construction boots, blue jeans, and a long-sleeved T-shirt containing the
emblem, "MJW Concrete." The deceased was later identified as Baraquel Alonzo Cruz,
who was born in early 1954.
The scene was processed for evidence and investigators found an expended nine-
millimeter cartridge casing five to six feet away from Cruz's body. Cruz's body was
transported to the coroner's office for an autopsy.
Steven Trenkle, a forensic pathologist, performed the autopsy and determined that
a bullet entered Cruz's mouth, passed through the cervical spine, and exited through the
back of his neck. Dr. Trenkle determined that the cause of death was the gunshot wound
to the head and neck. He opined that a person sustaining such an injury would be dead
within a matter of minutes absent immediate medical intervention. Sergeant David
Burgess and Detectives Jon Minard and Scott Landen went to MJW Concrete and spoke
to Jose Jesus Hernandez. Hernandez, Beltran, and Cruz worked together at MJW.
According to Hernandez, he, Beltran, Cruz, and two other workers were at a construction
job site in Yorba Linda on August 12. Beltran had driven the group to that site in the
2 All further dates are to calendar year 2008 unless otherwise specified. 4 company truck and the job ended at 3:30 p.m. On the way back, after Beltran dropped
the other two workers off at their homes, Hernandez heard Cruz complaining to Beltran
about his family and his problems. When Beltran stopped at a gas station, Cruz said he
was having problems with his daughters. He told Beltran he would be very grateful if
Beltran killed him. When Cruz went inside the gas station, Beltran told Hernandez that
Cruz was "playing with fire" and that he (Beltran) "could do something." Hernandez,
who was in the truck with Beltran, told Beltran to pay no attention to Cruz because Cruz
was "crazy." After they left the gas station, Beltran dropped Hernandez off at his house
and then drove away with Cruz. Cruz answered the phone and Hernandez heard Beltran's
voice in the background.
The next day, August 13, Hernandez was scheduled to work with Cruz and Beltran
at a job site in Temecula. Beltran was supposed to drive Cruz to the site, but Cruz did not
show up for work. When Hernandez asked Beltran about Cruz, Beltran told Hernandez
that after he took Hernandez home, Cruz drank some beer, he drove Cruz to his
girlfriend's house, Cruz agreed to go to the yard, but Cruz never arrived. Hernandez
called Cruz many times, but he did not answer.
Hernandez testified that on August 19 Beltran admitted to him at work that he had
killed Cruz. Beltran told Hernandez that he did not feel bad about what happened; he did
not feel any regret.
While the officers were at MJW, they also spoke to Beltran. Beltran agreed to
accompany Sergeant Burgess and Detective Minard to the sheriff's headquarters to be
interviewed. Detective Minard asked Beltran when he last saw Cruz. Beltran said that
5 while he and Cruz were working, Cruz told him he wanted to kill himself. Cruz did not
explain why; he just said he was "fed up with life." When asked whether he killed Cruz,
Beltran replied, "No, I didn't kill him." Beltran stated he "wasn't there" and he "didn't do
it."
Following further questioning, Detective Minard told Beltran he was under arrest
for killing Cruz and advised Beltran of his Miranda3 rights. Beltran stated that he
understood his rights and indicated he was willing to talk about what had happened to
Cruz. Beltran said that Cruz was his friend, and Cruz asked him to kill him because he
was fed up with life. Cruz told Beltran that he picked oranges when he was younger and
he worked better than everyone else, but when he got older everyone beat him at the job,
he earned less money, and he got depressed. Beltran said Cruz had told him that when he
turned 54 he was going to take his own life by swallowing poison. Beltran said he told
Cruz that whenever he decided he wanted to die, he would do that "favor" and kill him.
Beltran also told Detective Minard that while he, Hernandez, and Cruz were at the
job site in Yorba Linda on August 12, Cruz asked him to shoot him. Beltran said that
Hernandez was present when Cruz asked him (Beltran) to kill him. On the way home
from work, Cruz again asked Beltran to kill him. Beltran also indicated that, once he was
alone with Cruz in the truck at a gas station, Cruz again asked him to kill him. Cruz told
him he was fed up with life and said he had a daughter who was a Jehovah's Witness and
3 Miranda v. Arizona (1966) 384 U.S. 436. 6 had not spoken to him in a long time. He also said his wife only spoke to him because he
sent her money.
During the interview, Beltran also stated that after he took Hernandez home, he
drove Cruz to the location where he killed him. Beltran's Colt nine-millimeter handgun
was on the seat and Cruz saw it. Beltran said he asked Cruz whether he was sure he
wanted to be killed, and Cruz said, "yes." According to Beltran, Cruz said he wanted the
gun to be "emptied all in his chest." Beltran stated that, when he and Cruz got out of the
truck, he asked Cruz again if he was sure this is what he wanted, and Cruz responded,
"Yes, . . . do it." Beltran then admitted that he killed Cruz by shooting him once in the
head. Beltran said he left the gun near Cruz's body and drove home. Beltran added that
he was "at peace" with killing Cruz because it was "a death that [Cruz] wanted," not one
that he [Beltran] wanted.
B. The Defense
Testifying for the defense, Sergeant Daniel Finneran indicated that he responded
to the scene of the killing during the evening on August 13. He stated that "it did not
appear to [him] as if the body had been there for an extended period of time."
Vincent Sghiatti, a physician and general family medicine practitioner, testified he
was retained by the defense to ascertain the time of death. From his review of the
records, he opined that Cruz died the afternoon of August 13 between 2:00 and 6:00 p.m.
Several individuals who knew Beltran and Cruz testified that Beltran was honest,
hard working, nonviolent and that he and Cruz had a good relationship.
7 DISCUSSION
I. CLAIM OF INSTRUCTIONAL ERROR (COUNT 1)
Beltran first contends his second degree murder conviction must be reversed
because (1) Cruz, was Beltran's friend; (2) Cruz asked him to assist him in committing
suicide by shooting him, and, thus, (3) the court prejudicially erred by denying his
request for a jury instruction on the law of voluntary manslaughter as a lesser included
offense of murder based on the absence of malice. We reject this contention.
A. Background
As pertinent here, defense counsel submitted two proposed special instructions.
The first, proposed special instruction No. 1, provided:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone without malice.
"You have heard evidence that the defendant killed the decedent at the decedent's request. You are the exclusive judges of whether or not the defendant killed the decedent, and if so, whether the defendant killed the decedent at the decedent's request.
"If you find that the defendant killed the decedent at the decedent's request, you may find that the killing was committed without malice.
"The People have the burden of proving beyond a reasonable doubt that the defendant killed the decedent and did so with malice. If the People have not met this burden, you must find the defendant not guilty of murder.
"You should then deliberate whether the defendant is guilty of manslaughter." (Italics added.)
The second instruction requested by Beltran's counsel, proposed special instruction
No. 5, provided:
8 "You have heard evidence that the defendant killed the decedent at the decedent's request. You are the exclusive judges of whether the defendant killed the decedent, and if so, whether the defendant killed the decedent at the decedent's request. If you find that the defendant killed the decedent at the decedent's request, you may find that the fact that the killing was committed at the decedent's request negates any express or implied malice on the part of the defendant." (Italics added.)
At a jury instruction conference, in support of his request that the court give these
proposed instructions to the jury, Beltran's counsel argued that the California Supreme
Court "apparently ha[d] not addressed" the question of whether a killing carried out at the
request of the victim "should act to obviate malice," thereby reducing the crime of murder
to that of voluntary manslaughter.
The court denied defense counsel's request, responding that the proposed
instructions "fl[y] in the face" of the Supreme Court's decision in People v. Matlock
(1959) 51 Cal.2d 682 (Matlock).
B. Analysis
In his opening brief, Beltran correctly acknowledges that "the current law does not
support his contention that his mercy killing of his friend [(Cruz)] at his friend's request
was an act less than murder due to the absence of malice." Indeed, Matlock, supra, 51
Cal.2d 682─which the court cited in denying defense counsel's request that proposed
special instructions Nos. 1 and 5 be given to the jury─is virtually on point. In Matlock,
the California Supreme Court was presented with the issue of whether someone who
actively participates in the final overt act that causes the death of a suicide victim─at the
victim's request (see id. at p. 687)─is guilty of murder or may be found guilty of the
9 felony offense of deliberately aiding, advising, or encouraging the victim to commit
suicide in violation of section 401.4 (Matlock, supra, 51 Cal.2d at pp. 693-694.) The
defendant in that case admitted that he strangled the victim and took the victim's money,
claiming he did so at the victim's request because the victim told him he only had six
months to live and wanted to die in a way that appeared to be a "murder-robbery" in order
to avoid forfeiting the benefits of his insurance policy. (Id. at pp. 689, 694.) A jury
found the defendant guilty of first degree murder and second degree robbery. (Id. at p.
687.)
On appeal, the Matlock defendant acknowledged he could be guilty of aiding
suicide in violation of section 401, but claimed he could not be guilty of murder, and thus
the trial court erred in refusing his requested jury instructions based on section 401.
(Matlock, supra, 51 Cal.2d at p. 693.) Rejecting these claims, the Supreme Court held
that, "[i]n these circumstances," the trial court properly refused to give the instruction
based on section 401 because the defendant's active participation in the final overt act
causing the victim's death barred the application of section 401. (Matlock, supra, 51
Cal.2d at p. 694; see In re Joseph G. (1983) 34 Cal.3d 429, 435 [stating that, in Matlock,
"we held that the defendant's active participation in the final overt act causing the victim's
death, i.e., strangling him, precluded the application of the aiding suicide statute
[(§ 401)]"].) The Matlock court explained that the defendant's active participation in the
4 Section 401 provides: "Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony." 10 overt act that resulted in the victim's death "constitute[d] murder," and it was "wholly
immaterial" that the defendant acted at the request of the victim:
"'[W]here a person actually performs, or actively assists in performing, the overt act resulting in death, such as shooting or stabbing the victim, administering the poison, or holding one under water until death takes place by drowning, his act constitutes murder, and it is wholly immaterial whether this act is committed pursuant to an agreement with the victim, such as a mutual suicide pact.'" (Matlock, supra, 51 Cal.2d at p. 694, italics added.)
We addressed Matlock in People v. Cleaves (1991) 229 Cal.App.3d 367 (Cleaves),
which also is virtually on point. In Cleaves, the accused's defense to a murder charge
was that he killed the victim, who was suffering from AIDS, at the victim's request to
relieve the victim's suffering. (Id. at pp. 372-373.) Pursuant to the victim's request, the
defendant assisted him in strangling himself. (Ibid.) At trial the court instructed the jury
on first and second degree murder only, refusing to instruct the jury on the lesser related
offense of aiding and abetting suicide, and also refusing to instruct the jury on voluntary
and involuntary manslaughter. (Id. at pp. 374-375.) The jury found the defendant guilty
of second degree murder, and he appealed to this court. (Id. at p. 371.)
Relying on Matlock, the Cleaves defendant claimed on appeal that the facts
supported a jury instruction on a lesser related offense of voluntary manslaughter based
on his asserted lack of malice. (Cleaves, supra, 229 Cal.App.3d at pp. 371, 376.) Citing
Matlock we rejected that claim, stating:
"[Defendant] asks us to fashion a manslaughter crime for a killing done at the victim's request, based on the absence of malice, which does not now expressly exist under California law. . . . As recognized by [the defendant], our Supreme Court in [Matlock], supra, 51 Cal.2d at page 694, defined a killing pursuant to an
11 agreement with the victim as murder. Although Matlock does not address the absence of malice issue, as a lower tribunal we decline to deviate from the parameters of Matlock." (Cleaves, supra, 229 Cal.App.3d at p. 376, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We also stated in Cleaves that "[w]e leave it to our Supreme Court to resolve
whether it is appropriate to examine the malice issue as it pertains to a killing at the
victim's request." (Cleaves, supra, 229 Cal.App.3d at p. 377.)
Here, we are constrained─as we were in Cleaves─by the California Supreme
Court's holdings in Matlock, supra, 51 Cal.2d at page 694, that an unlawful homicide
committed by a defendant who claims the offense was a mercy killing done at the request
of the victim is murder, and that it is wholly immaterial whether the defendant's active
participation in the overt act resulting in the victim's death took place pursuant to an
agreement with the victim. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d
at p. 455.) Accordingly, we affirm Beltran's conviction of second degree murder.
II. SECTION 12022.53(d) FIREARM ENHANCEMENT
Beltran alternatively contends that, if this court affirms his murder conviction, the
consecutive sentence enhancement of 25 years to life imposed under section
12022.53(d)5 (for discharging a firearm, causing death, during the commission of the
5 When Beltran murdered Cruz in 2008, former section 12022.53(d) provided: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (Stats. 2006, ch. 901, § 11.1.) In 2010, former 12 murder) must be stricken and a determinate term of 20 years imposed in its place under
section 12022.53(c) because (1) "the plain language of [section 12022.53(d)] indicates
that it applies 'to any person other than an accomplice'" (italics added); (2) Cruz was an
accomplice because he "was an aider and abettor as well as a coconspirator to the crime
of his killing" in that "[he] asked [Beltran] to kill him"; and, thus, (3) the court erred in
preventing the jury from determining whether Cruz was an accomplice by modifying
CALCRIM No. 3149─the standard jury instruction on section 12022.53(d)─"by
eliminating the need for the jury to determine whether Cruz was 'any person other than an
We reject this contention and affirm the section 12022.53(d) firearm enhancement
because (1) Cruz could not have been charged with murder or any other crime had he
survived the shooting; and, thus, (2) Cruz was not an accomplice within the meaning of
the accomplice exception to that firearm enhancement as a matter of law.
1. Section 12022.53(d) firearm enhancement allegation
As to the murder offense, the information alleged that Beltran, in committing the
murder, personally and intentionally discharged a firearm causing great bodily injury and
death to the victim (Cruz) within the meaning of the firearm enhancement set forth in
section 12022.53(d).
section 12022.53(d) was amended (operative Jan. 1, 2012) to change the reference to "Section 12034" to "Section 26100." (Stats. 2010, ch. 711, § 5.) In all other respects former section 12022.53(d) and the current version of section 12022.53(d) are identical. Because the post-2008 amendment of the statute does not alter our analysis, in the interest of clarity we refer here to the current version of section 12022.53(d). 13 2. Modified version of CALCRIM No. 3149 given by the court
During an unreported jury instruction conference, the court modified CALCRIM
No. 3149─the standard jury instruction on the section 12022.53(d) firearm
enhancement─and instructed the jury on that enhancement as follows:
"If you find the defendant guilty of murder in the first or second degree in Count 1, you must then decide whether the People have proved the additional allegation that the defendant personally and intentionally discharged a firearm during that crime causing death.
"To prove this allegation, the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission of that crime; [¶] 2. The defendant intended to discharge the firearm; [¶] AND [¶] 3. The defendant's act caused the death of a person.
"The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." (Italics added.)
Thus, under the modified version of CALCRIM No. 3149 given by the court, the
foregoing italicized third element (hereafter element No. 3), which the prosecution was
required to prove in order to obtain a true finding on the section 12022.53(d) firearm
enhancement allegation, required proof that "[t]he defendant's act[] caused the death of a
person." In modifying CALCRIM No. 3149, the court omitted from element No. 3 the
bracketed phrase "who was not an accomplice to the crime."6 The unmodified version of
6 When Beltran committed the murder in August 2008, element No. 3 of former CALCRIM No. 3149 (like element No. 3 of the current version of CALCRIM No. 3149) included the bracketed accomplice exception and provided in part: "To prove this allegation, the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission . . . of that crime; [¶] 2. The defendant intended to discharge the firearm; [¶] AND [¶] 3. The defendant's act caused . . . the death of . . . a person [who was not an accomplice to the crime]." (CALCRIM No. 3149 (Spring 2008), 14 element No. 3, had it been given by the court, would have included the bracketed
accomplice exception language and would have required proof that "[t]he defendant's act
caused . . . the death of . . . a person [who was not an accomplice to the crime]."
(CALCRIM No. 3149, italics added.)
In modifying CALCRIM No. 3149, the court also omitted the following bracketed
definition of "accomplice":
"[A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. A person is subject to prosecution if he or she committed the crime or if: [¶] 1. He or she knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime/ [or] participate in a criminal conspiracy to commit the crime).]" (CALCRIM No. 3149, original italics.)
3. Jury's finding on the section 12022.53(d) firearm enhancement allegation and the imposition of the 25-year-to-life enhancement at sentencing
Based on the modified version of CALCRIM No. 3149 given by the court
(discussed, ante), the jury found to be true the section 12022.53(d) firearm enhancement.
As a result of that true finding, the court imposed at sentencing the consecutive
indeterminate prison term enhancement of 25 years to life mandated by section
12022.53(d).
B. Section 12022.53 and the accomplice exception to section 12022.53(d)
Section 12022.53, which is also known as the "10–20–life" law, "was enacted in
1997 to substantially increase the penalties for using firearms in the commission of
italics added; cf. CALCRIM No. 3149 (2014).) For clarity's sake we refer to the current version of CALCRIM No. 3149. 15 enumerated felonies," including, as relevant here, murder. (People v. Palmer (2005) 133
Cal.App.4th 1141, 1148-1149; § 12022.53, subd. (a)(1) (Palmer).) "The statute
prescribes sentence enhancements (prison terms of 10 years, 20 years, and 25 years to
life) for increasingly serious circumstances of firearm use. [Citations.] Section
12022.53[(b)] requires imposition of an additional, consecutive term of 10 years when the
defendant personally uses a firearm during commission of the crime. Subdivision (c)
requires imposition of an additional, consecutive 20-year term when the defendant
personally and intentionally discharges a firearm during commission of the crime.
[Section 12022.53(d)], the provision at issue here, requires imposition of an additional,
consecutive 25-year-to-life term when the defendant 'personally and intentionally
discharges a firearm and proximately causes great bodily injury, as defined in Section
12022.7, or death, to any person other than an accomplice . . . .'" (Palmer, supra, 133
Cal.App.4th at p. 1149, italics added, original italics omitted; § 12022.53(d).)
Thus, under the accomplice exception set forth in section 12022.53(d), the 25-
year-to-life sentence enhancement provided by section 12022.53(d) does not apply if the
victim of an enumerated crime committed by the defendant was an accomplice to a crime
he or she and the defendant intended to commit. (§ 12022.53(d); People v. Flores (2005)
129 Cal.App.4th 174, 182 (Flores) ["If the victim is an accomplice to the crime he or she
and defendant intended but ends up the victim of one of the enumerated offenses, the
[accomplice] exception in section 12022.53[(d)] applies."].)
16 C. Analysis
In this case substantial evidence presented at trial (discussed, ante, in the factual
background) shows, and the Attorney General does not dispute, that Beltran shot and
killed the victim─his friend and coworker, Cruz─at Cruz's request. The jury found
Beltran guilty of second degree murder and the court imposed the challenged firearm
enhancement of 25 years to life under section 12022.53(d) without instructing the jury to
determine whether Cruz was an accomplice to the crime.
The principal question we must decide is whether Cruz was an "accomplice" to the
murder within the meaning of the accomplice exception set forth in section 12022.53(d).
Under the accomplice exception, as already discussed, the 25-year-to-life sentence
enhancement provided by section 12022.53(d) applies only if the defendant, in
discharging a firearm during his or her commission of an enumerated offense (here,
murder), proximately caused great bodily injury or (as occurred here) death to someone
"other than an accomplice." (§ 12022.53(d); Flores, supra, 129 Cal.App.4th at p. 182.)
Thus, if─as Beltran contends─Cruz was an accomplice to his own murder because he
asked Beltran to kill him, the accomplice exception to the section 12022.53(d) firearm
enhancement applies and we must conclude both that the court erroneously modified
CALCRIM No. 3149 by omitting the accomplice exception language ("other than an
accomplice") that would have required the jury to determine whether Cruz was an
accomplice and that the court erroneously imposed the 25-year-to-life sentence
enhancement under section 12022.53(d). If Cruz was not an accomplice, as the Attorney
General contends, we must conclude both that the court properly gave to the jury the
17 modified version of CALCRIM No. 3149 (discussed, ante), and that it properly imposed
the firearm enhancement under section 12022.53(d).
Our analysis hinges on the legal definition of "accomplice." As this court
explained in People v. Verlinde (2002) 100 Cal.App.4th 1146, "[a]ccomplice liability is
'"derivative,"' resulting from an act by the perpetrator to which the accomplice
contributed." (Id. at p. 1158, quoting People v. Prettyman (1996) 14 Cal.4th 248, 259.)
"Put another way, '"[a]n accomplice" is one who knowingly, voluntarily, and with
common intent with the principal offender unites in the commission of the crime.'"
(Verlinde at p. 1158, quoting People v. Jones (1967) 254 Cal.App.2d 200, 213.)
However, for a person to be an accomplice it is not sufficient that he or she
knowingly, voluntarily, and with common intent with the principal offender unites in the
commission of the crime. The California Supreme Court has explained that "[s]ection
1111[7] defines a[n] accomplice as a person 'who is liable to prosecution for the identical
offense charged against the defendant on trial [and] that [t]his definition encompasses all
principals to the crime [citation], including aiders and abettors and coconspirators."
(People v. Stankewitz (1990) 51 Cal.3d 72, 90, italics added.) Thus, in order to be an
accomplice, a person also "'must be chargeable with the crime as a principal (§ 31) . . . .'"
(Verlinde, supra, 100 Cal.App.4th at p. 1158, quoting People v. Sully (1991) 53 Cal.3d
1195, 1227, italics added; § 1111.) "Whether a person is an accomplice is a question of
7 Section 1111 provides in pertinent part: "An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Italics added.) 18 fact for the jury unless there is no dispute as to either the facts or the inferences to be
drawn therefrom." (Stankewitz, at p. 90.)
Beltran, however, disputes that in order to be deemed an "accomplice" within the
meaning of section 12022.53(d), a person must be chargeable with a crime. Specifically,
he asserts that Cruz "was an 'accomplice' to his own murder whether or not he could be
charged with a crime." (Italics added.) Correctly noting that section 1111 "is a very old
statute from 1872" (see 50B West's Ann. Pen. Code (2004 ed.) foll. § 1111, p. 383) and
that section 12022.53 "was added in 1997" (see Palmer, supra, 133 Cal.App.4th at p.
1148), Beltran also asserts that, "[h]ad the Legislature in enacting Section 12022.53
meant for the definition of an accomplice to be that of Section 1111, it would have said
so." These assertions are without merit. As Beltran himself acknowledges, it is an
established rule of statutory construction that "the Legislature is deemed to be aware of
statutes . . . already in existence and to have enacted a statute in light of existing statutes
and decisions." (People v. Kelly (2013) 215 Cal.App.4th 297, 305, citing People v. Yartz
(2005) 37 Cal.4th 529, 538.) Thus, when the Legislature enacted section 12022.53 in
1997, it presumably was aware of the definition of accomplice set forth in section 1111,
an existing statute. Accordingly, we presume that if the Legislature in enacting section
12022.53 had intended that the definition of accomplice set forth in section 1111 not
apply, it would have said so. (Yartz, supra, 37 Cal.4th 529 at p. 538; Kelly, supra, 215
Cal.App.4th at p. 305.)
Turning to the undisputed facts of this case, we conclude that Cruz was not an
accomplice to his own murder within the meaning of the accomplice exception set forth
19 in section 12022.53(d) as a matter of law, and thus the court did not err in modifying
CALCRIM No. 3149 and in imposing the 25-year-to-life firearm enhancement under
section 12022.53(d), because Cruz could not have been lawfully charged with any crime,
including attempted murder, had he survived the shooting perpetrated by Beltran at
Cruz's request. "Murder is the unlawful killing of another human being . . . with malice
aforethought." (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against
the Person, § 97, p. 887, italics added; CALCRIM No. 500 [stating in part that
"[h]omicide is the killing of one human being by another" and murder is a type of
homicide].) Thus, had Cruz survived the shooting, he would not have been chargeable as
an accomplice to attempted murder because he was not liable to prosecution for his own
unlawful killing. (1 Witkin & Epstein, Cal. Criminal Law, supra, § 97. p. 887;
CALCRIM No. 500; see In re Joseph G. (1983) 34 Cal.3d 429, 433 ["[M]ost [American
jurisdictions], including California, attach no criminal liability to one who makes a
suicide attempt."]; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 ["Neither suicide nor
attempted suicide is a crime under the criminal statutes of California or any other state."])
Beltran's reliance on Flores, supra, 129 Cal.App.4th 174, is unavailing. In that
case the defendant (Flores) and a fellow gang member (Valdivia) conspired to commit a
battery on a rival gang member (Morales). (Id. at p. 182.) While Valdivia was fighting
with Morales during a gang brawl, Flores shot at Morales with a firearm but hit and killed
Valdivia. (Ibid.) The prosecution charged Flores with the murder of Valdivia and
alleged that Flores's sentence should be enhanced under the then-existing version of
section 12022.53(d) that, like the version of section 12022.53(d) at issue in this case,
20 applied only if the victim of the defendant's enumerated crime was someone "other than
an accomplice."8 (Flores, at p. 181.) Like the court in the instant case, the trial court in
Flores failed to include the words "other than an accomplice" when it instructed the jury
on the section 12022.53(d) firearm enhancement. (Flores, at pp. 177, 181.) A jury found
Flores guilty of the first degree murder of Valdivia and also found to be true the section
12022.53(d) enhancement allegation. (Flores, at p. 180.) At sentencing, the trial court
imposed the 25-year-to-life sentence enhancement provided by section 12022.53(d).
(Ibid.)
On appeal, the Flores court held that when the trial court struck the words "other
than an accomplice" from the jury instruction on the section 12022.53(d) enhancement, it
erroneously "withdrew from the jury the opportunity to consider whether Valdivia was an
accomplice to defendant's discharge of the firearm either as an aider and abettor or as a
coconspirator." (Flores, supra, 129 Cal.App.4th at p. 183.) Observing that "[t]he
Legislature [in enacting section 12022.53(d)] apparently decided that killing one's
accomplice is less blameworthy (or at least less deserving of punishment) than killing a
nonaccomplice" (Flores, at p. 181), the Court of Appeal reasoned that, "[h]ad [Flores's]
shot hit only Morales or Morales and some other person" (ibid.)─in other words, had the
8 The former version of section 12022.53(d) at issue in Flores provided: "'Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), . . . and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused . . . death[] to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony.'" (Flores, supra, 129 Cal.App.4th at p. 181, original italics.) 21 murder victim, Valdivia, survived─Valdivia "would surely have been charged as a
coconspirator and an aider and abettor of defendant's crimes, i.e., an accomplice." (Ibid.,
italics added.) The Flores court explained that, "[i]f the victim is an accomplice to the
crime he or she and defendant intended but ends up the victim of one of the enumerated
offenses, the exception in section 12022.53[(d)] applies." (Flores, at p. 182.)
Beltran's reliance on Flores is unavailing because that case is distinguishable. The
murder victim in Flores was an accomplice for purposes of section 12022.53(d) because,
had he survived the shooting, he would have been liable to prosecution as an aider and
abettor, and as a coconspirator, for the crime he and the defendant intended to commit.
Here, as already discussed, Cruz would not have been liable to prosecution as an
accomplice for the crime he asked Beltran to commit: his own unlawful killing.
For all of the foregoing reasons, we affirm the 25-year-to-life sentence that the
court imposed on Beltran under section 12022.53(d).
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.