Filed 12/15/15 P. v. Cortez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068051
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1103048)
WALTER MORALES CORTEZ et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Riverside County, Michael J.
Rushton, Judge. Affirmed in part and reversed in part with directions.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and
Appellant Walter Morales Cortez.
Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and
Appellant Lilia Teresa Rivas.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff
and Respondent. In People v. Chiu (2014) 59 Cal.4th 155 (Chiu), our Supreme Court determined
that an aider and abettor may no longer be convicted of first degree murder on the theory
the victim's death was the natural and probable consequence of the aider and abettor's
participation in another crime committed by the actual killer; the court held that a natural
and probable consequence theory will only support an aider and abettor's conviction of
second degree murder.
Here, two defendants were tried for murder and attempted murder before the
court's opinion in Chiu was rendered, and the trial court instructed the jury that one of the
defendants could be convicted of first degree murder on a theory the victim's death was
the natural and probable consequence of her participation as an aider and abettor. Under
Chiu, the natural and probable consequence instruction the trial court gave was
erroneous, and, in light of the prosecutor's reliance on that theory in her argument to the
jury, we are not convinced beyond a reasonable doubt the error was harmless.
Accordingly, the aider and abettor's first degree murder conviction must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Shooting
Defendants and appellants Walter Morales Cortez and Lilia Teresa Rivas are
married. Cortez was the founder of a "tagging crew" known as Brown Evil (BE); Rivas
was an associate of BE. The Romoland Vatos Locos (RVL) is a Riverside County
criminal street gang; RVL and BE compete as rivals over territory in Riverside.
On June 10, 2011, an escalating series of confrontations between BE members and
RVL members ended when an RVL member, Adrian Acosta, walked up to the fenced
yard of a home occupied by BE members. Adrian Acosta confronted Rivas and
2 challenged her to fight; she slapped him and a fist fight broke out between them. Raul
Acosta, Adrian's older brother, attempted to intervene and break up the fight.
At that point, Rivas knew her husband was armed. Earlier in the day, she had
repeatedly told other BE members that Cortez was "strapped" and that she and Cortez
were ready to "take care of things." Rivas backed away from the fight and yelled to her
husband, Cortez, who was nearby: "He hit me, shoot him, shoot him." Cortez pulled out
a .38-caliber revolver; Raul Costa jumped in front of his younger brother and yelled:
"Don't shoot my brother." Although the fight between Rivas and Adrian Acosta had
stopped, and Rivas was standing next to Cortez inside the fence, Cortez fired four shots;
three hit Adrian Acosta in the chest, and he died at the scene; one shot hit Raul Acosta,
and he was able to flee from the scene.
The following day, Cortez burned the clothes he was wearing at the time of the
shooting and threw the gun into the ocean. Cortez also tried to get another BE member to
take responsibility for the shooting; for her part, Rivas prevailed upon a family member
to write an alibi letter to police stating that Cortez and Rivas were not at the house at the
time of the shooting.
B. Trial Court Proceedings
By way of an amended information, Cortez and Rivas were each charged with one
count of first degree murder and one count of attempted first degree murder (Pen.
Code,1 §§ 187, subd. (a), 664, subd. (a)); in addition, the information alleged that Cortez
personally and intentionally discharged a firearm causing great bodily injury or death
(§ 12022.53, subd. (d)).
1 All further statutory references are to the Penal Code unless otherwise indicated. 3 Cortez and Rivas each testified on their own behalf. Cortez testified he shot in the
direction of the Acosta brothers because he thought Rivas might have been stabbed and
he thought he needed to defend her. Rivas testified she told Cortez to "pull it out"
because she thought that the fight would end if Cortez brandished the gun; she denied
telling Cortez to shoot anyone.
The trial court gave the jury, among other instructions, versions of CALCRIM
Nos. 301 and 403. As given by the trial court, CALCRIM No. 301 required that Cortez's
and Rivas's testimony be corroborated if they were accomplices. The version of
CALCRIM No. 403 provided to the jury permitted the jury to find Rivas guilty of
murder and attempted murder if Adrian Acosta's murder and the attempted murder of
Raul Acosta were the natural and probable consequences of Cortez's commission of the
crimes of brandishing a firearm or assault with a firearm, and Rivas knew that Cortez
was going to commit those crimes and aided, facilitated, promoted, encouraged or
instigated Cortez's commission of those crimes.
In her closing argument, the prosecutor told the jury that, under the natural and
probable consequences doctrine, Rivas could be found guilty of both first degree murder
and attempted first degree murder.
The jury found both Cortez and Rivas guilty of first degree murder. The jury also
found both guilty of the attempted murder of Raul Acosta and, in a separate finding, that
the attempt was an attempt to commit first degree murder; the jury also found Cortez had
personally and intentionally discharged a firearm, causing great bodily injury. The trial
court sentenced Cortez to 82 years to life in prison and Rivas to 32 years to life in
prison. Both defendants filed notices of appeal.
4 DISCUSSION
I
Common Issues
A. Corroboration
The version of CALCRIM No. 301, which the trial court gave the jury, stated:
"Except for the testimony of Walter Morales Cortez and Lilia Teresa Rivas[, which]
require[s supporting] evidence[, i]f you decide that he or she is an accomplice[,] the
testimony of only one witness can prove any fact." The trial court also gave the jury a
version of CALCRIM No. 334, which stated: "Before you may consider the statement or
testimony of Lilia Teresa Rivas as evidence against Walter Morales Cortez, and
conversely, before you may consider the statement or testimony of Walter Morales
Cortez against Lilia Teresa Rivas, you must decide whether Walter Morales Cortez and
Lilia Teresa Rivas were accomplices. A person is an accomplice if he or she is subject to
prosecution for the identical crime charged against the defendant. Someone is subject to
prosecution if:
"1. He or she personally committed the crime;
"OR
"2. He or she knew of the criminal purpose of the person who committed the
crime[.] [¶] . . . [¶]
"If you decide that a declarant or witness was not an accomplice, then supporting
evidence is not required and you should evaluate his or her statement or testimony as you
would that of any other witness.
5 "If you decide that a declarant or witness was an accomplice, then you may not
convict the defendant of the crimes charged in counts 1 and 2, the lesser included
offenses to those crimes or the gun use enhancements, based on the accomplice's
statement or testimony alone. You may use the statement or testimony of an accomplice
to convict the defendant only if:
"1. The accomplice's statement or testimony is supported by other evidence that
you believe;
"2. That supporting evidence is independent of the accomplice's statement or
testimony;
"AND
"3. That supporting evidence tends to connect the defendant to the commission of
the crimes."
With respect to the defenses of self-defense and the defense of others, and
defendants' alternative contention the shooting occurred in the heat of passion, the jury
was instructed that the burden was on the prosecution to show beyond a reasonable doubt
that those circumstances did not occur.
On appeal, Cortez and Rivas contend that CALCRIM No. 301, as given by the
trial court, unduly interfered with their respective defenses of self-defense and the
defense of others, as well as their claim that they acted in the heat of passion, because
those matters depended in some measure on the respective testimony each provided on
the other's behalf. They argue the instruction suggested to the jury that their own
testimony was not sufficient to establish their defenses or mitigate their crimes to
manslaughter. We find no prejudicial error.
6 As the Attorney General points out, in reviewing claims of instructional error, we
"must consider whether it is reasonably likely that the trial court's instructions caused the
jury to misapply the law. [Citation.] '[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.' [Citations.]" (People v. Carrington (2009)
47 Cal.4th 145, 192.) Importantly, we must presume jurors are intelligent and "capable
of understanding and correlating jury instructions." (People v. Martin (1983) 150
Cal.App.3d 148, 158.)
The CALCRIM No. 334 instruction, which defined the term accomplice and
explained that accomplice statements could not be used against either defendant without
corroboration, substantially diminished any risk jurors would misinterpret CALCRIM
No. 301 when they considered Rivas's and Cortez's contentions that at the time of the
shootings they were afraid Rivas might be killed or seriously injured. Indeed, CALCRIM
No. 334 largely provides the amplification, which defendants suggest CALCRIM No.
301 needed to make it accurate. Thus, we are not inclined to find that where, as here,
there was no request for an amplification of CALCRIM No. 301, the trial court erred in
giving its version of CALCRIM No. 301 along with CALCRIM No. 334. Taken
together, the instructions were more likely to be interpreted as requiring caution when
considering incriminating inferences to be drawn from the other defendant's statements.
Moreover, any instructional error in failing to more fully amplify CALCRIM No.
301 was not prejudicial. In determining the impact of such an instructional error, if it
occurred, we are governed by the familiar standard set forth in People v. Watson (1956)
46 Cal.2d.818, 836. (See People v. Breverman (1998) 19 Cal.4th 142, 149.) Here, the
7 only harm the challenged instruction may have caused was in damaging defendants'
credibility. However, Cortez's and Rivas's credibility was substantially undermined by
their respective efforts to manufacture an alibi and induce someone else to take
responsibility for the shootings, and the testimony of witnesses to the shooting who stated
that the fight was over by the time Cortez started firing at the Acosta brothers. Given
defendants' lack of credibility and other evidence of their guilt, there is little, if any,
probability a more fully amplified version of CALCRIM No. 301 would have resulted in
a more favorable verdict for either defendant.
B. Sufficiency of the Evidence
Next, the defendants contend the prosecution failed to show beyond a reasonable
doubt that, when he shot the Acosta brothers, Cortez was not acting either to defend
Rivas or in the heat of passion. Again, we reject defendants' contention.
" ' "When the sufficiency of the evidence is challenged on appeal, the court must
review the whole record in the light most favorable to the judgment to determine whether
it contains substantial evidence--i.e., evidence that is credible and of solid value--from
which a rational trier of fact could have found the defendant guilty beyond a reasonable
doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849, quoting People v. Jennings
(1991) 53 Cal.3d 334, 364.) The defendant bears the burden of demonstrating the
insufficiency of evidence and must present the facts in the light most favorable to the
prosecution. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) Thus, the
appellate court "must presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d
294, 314, citing People v. Johnson (1980) 26 Cal.3d 557, 576-577.)
8 As we have noted, here witnesses testified that earlier in the day, after an initial
confrontation with RVL members, Rivas told other BE members that Cortez was
"strapped"; significantly, witnesses testified the fight with Adrian Acosta was over when
Cortez began shooting and that, at that point, Rivas was standing next to Cortez. After
the shooting, both defendants made fairly substantial efforts to conceal their participation
in the crime: Cortez attempted to get an acquaintance to take responsibility for the attack,
and Rivas asked a relative to establish an alibi for both of them. In addition, Cortez
burned the clothing he was wearing at the time of the killing and threw the gun he used
into the ocean. Plainly, this conduct was not consistent with a belief Cortez was acting in
lawful defense of Rivas but was far more consistent with criminals who were conscious
of their guilt of a very serious crime. Taken together, the testimony of witnesses who
saw the shooting and defendants' manifest consciousness of guilt was more than
sufficient to prove that the shootings were neither in the defense of Rivas nor in the heat
of passion, but were a cold-blooded attack on rival gang members.
II
Rivas's Separate Contentions
A. Natural and Probable Consequence Doctrine
Rivas also contends that in light of Chiu, her convictions for first degree murder
and attempted first degree murder must be reversed and remanded with instructions that
convictions for second degree murder and attempted second degree murder be entered
and that she be resentenced. We agree in part.
9 1. People v. Chiu
In Chiu, a jury convicted the defendant of first degree willful, deliberate, and
premeditated murder, after the jury was instructed the defendant was guilty of that
offense if he aided and abetted in either of two target offenses—assault and disturbing the
peace—and murder was the natural and probable consequence of those target offenses.
The defendant in Chiu had participated in a brawl between two groups of high school
students; during the course of the brawl, he told one of his friends to "grab the gun," and,
when the friend appeared with the gun but hesitated to shoot, the defendant and a third
participant yelled, "shoot him, shoot him." The defendant's friend then shot and killed a
member of the rival group.
In reversing the defendant's first degree murder conviction, the Supreme Court
discussed the development of the natural and probable consequences theory of culpability
and its role in the crime of murder: "The natural and probable consequences doctrine is
based on the principle that liability extends to reach 'the actual, rather than the planned or
"intended" crime, committed on the policy [that] . . . aiders and abettors should be
responsible for the criminal harms they have naturally, probably, and foreseeably put in
motion.' [Citations.] 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.]
"In the context of murder, the natural and probable consequences doctrine serves
the legitimate public policy concern of deterring aiders and abettors from aiding or
10 encouraging the commission of offenses that would naturally, probably, and foreseeably
result in an unlawful killing. A primary rationale for punishing such aiders and
abettors—to deter them from aiding or encouraging the commission of offenses—is
served by holding them culpable for the perpetrator's commission of the nontarget
offense of second degree murder. [Citation.] It is also consistent with reasonable
concepts of culpability. Aider and abettor liability under the natural and probable
consequences doctrine does not require assistance with or actual knowledge and intent
relating to the nontarget offense, nor subjective forseeability of either that offense or the
perpetrator's state of mind in committing it. [Citation.] It only requires that under all of
the circumstances presented, a reasonable person in the defendant's position would have
or should have known that the nontarget offense was a reasonably foreseeable
consequence of the act aided and abetted by the defendant. (Ibid.)" (Chiu, supra, 59
Cal.4th at pp. 164-166, italics and fn. omitted.)
However, because the additional elements required for commission of first degree
murder—willfulness, premeditation and deliberation—are not directly related to the
deterrence of harm, which serves as the basis for the natural and probable consequences
theory, and because of the severe penalty for first degree murder—25 years to life, with
no possibility of parole until the defendant has served 25 years in prison (§§ 190,
subd. (a), 3046, subd. (a)(2))—the court found the natural and probable consequences
doctrine will not support a jury's determination that an aider and abettor acted with the
requisite willfulness, premeditation and deliberation. "First degree murder, like second
degree murder, is the unlawful killing of a human being with malice aforethought, but has
the additional elements of willfulness, premeditation, and deliberation, which trigger a
11 heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It
requires more than a showing of intent to kill; the killer must act deliberately, carefully
weighing the considerations for and against a choice to kill before he or she completes
the acts that caused the death. [Citations.] Additionally, whether a direct perpetrator
commits a nontarget offense of murder with or without premeditation and deliberation
has no effect on the resultant harm. The victim has been killed regardless of the
perpetrator's premeditative mental state. Although we have stated that an aider and
abettor's 'punishment need not be finely calibrated to the criminal's mens rea' [citation],
the connection between the defendant's culpability and the perpetrator's premeditative
state is too attenuated to impose aider and abettor liability for first degree murder under
the natural and probable consequences doctrine, especially in light of the severe penalty
involved and the above-stated public policy concern of deterrence.
"Accordingly, we hold that punishment for second degree murder is
commensurate with a defendant's culpability for aiding and abetting a target crime that
would naturally, probably, and foreseeably result in a murder under the natural and
probable consequences doctrine. We further hold that where the direct perpetrator is
guilty of first degree premeditated murder, the legitimate public policy considerations of
deterrence and culpability would not be served by allowing a defendant to be convicted
of that greater offense under the natural and probable consequences doctrine." (Chiu,
supra, 59 Cal.4th at p. 166.)
Importantly, the court in Chiu made it clear that an aider and abettor may be found
guilty of first degree murder under a theory of direct participation: "Aiders and abettors
may still be convicted of first degree premeditated murder based on direct aiding and
12 abetting principles. [Citation.] Under those principles, the prosecution must show that
the defendant aided or encouraged the commission of the murder with knowledge of the
unlawful purpose of the perpetrator and with the intent or purpose of committing,
encouraging, or facilitating its commission. [Citation.] Because the mental state
component—consisting of intent and knowledge—extends to the entire crime, it
preserves the distinction between assisting the predicate crime of second degree murder
and assisting the greater offense of first degree premeditated murder. [Citations.] An
aider and abettor who knowingly and intentionally assists a confederate to kill someone
could be found to have acted willfully, deliberately, and with premeditation, having
formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea
required for first degree murder." (Chiu, supra, 59 Cal.4th at pp. 166-167.)
The court found that the trial court's error was prejudicial and that reversal of the
defendant's conviction was therefore required. (Chiu, supra, 59 Cal.4th at p. 168.) The
court allowed the People to accept a reduction of the conviction to second degree murder
or to retry the greater offense. (Ibid.)
13 2. Analysis–First Degree Murder
Here, there is no dispute that under the instructions the trial court gave the jury,
the jury could find Rivas guilty of first degree murder under the probable consequences
doctrine. Indeed, the prosecutor relied on the probable consequences doctrine in her
closing argument to the jury. The trial court's instructions also permitted Rivas to be
convicted on the theory that she was a direct participant in the murder of Adrian Acosta.
However, as the Attorney General concedes, in her rebuttal argument the prosecutor
directed the jury to focus primarily on the natural and probable consequences doctrine.
When, as here, "a trial court instructs a jury on two theories of guilt, one of which
was legally correct and one legally incorrect, reversal is required unless there is a basis in
the record to find that the verdict was based on a valid ground. [Citations.] Defendant's
first degree murder conviction must be reversed unless we conclude beyond a reasonable
doubt that the jury based its verdict on the legally valid theory that defendant directly
aided and abetted the premeditated murder. [Citation.]" (Chiu, supra, 59 Cal.4th at
p. 167.)
Here, the prosecutor's emphasis on the natural and probable consequences theory
in her rebuttal makes it difficult to conclude with confidence that the jury relied instead
on the theory that Rivas directly aided and abetted premeditated murder. Admittedly,
Rivas's fight with Adrian Acosta, in which mutual blows were apparently struck, and her
statement to Cortez, "shoot him, shoot him," give rise to an inference that, at that point,
she wanted her husband to kill Adrian Acosta and had the requisite intent to support a
first degree murder conviction as a direct aider and abettor. However, those
14 circumstances do not necessarily show that the jury found the required mental state,
especially in light of the prosecutor's argument.
Contrary to the Attorney General's argument, the jury's finding that the attempted
murder of Raul Acosta was an attempted first degree murder, does not show the jury
found that Rivas directly aided and abetted either the murder of Adrian Acosta or the
attempted murder of Raul Acosta. The instructions that the trial court gave the jury
permitted the jury to use the natural and probable consequences theory to find Rivas
committed an attempted first degree murder as well as first degree murder. In particular,
the instructions permitted the jury to find Rivas committed attempted first degree murder
if either Cortez or Rivas acted willfully, deliberately and with premeditation.
3. Analysis–Attempted First Degree Murder
We are compelled by the court's holding in People v. Favor (2012) 54 Cal.4th 868,
877-878 (Favor) to affirm Rivas's conviction of the attempted murder of Raul Acosta and
the jury's specific finding the attempt was an attempt to commit first degree murder.
The attempt to commit a crime is proscribed by section 664. Section 664,
subdivision (a) sets forth the punishment for attempts to commit felonies, including
attempts to commit murder. In part, section 664, subdivision (a) states: "[I]f the crime
attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the
person guilty of that attempt shall be punished by imprisonment in the state prison for life
with the possibility of parole. If the crime attempted is any other one in which the
maximum sentence is life imprisonment or death, the person guilty of the attempt shall be
punished by imprisonment in the state prison for five, seven, or nine years. The
additional term provided in this section for attempted willful, deliberate, and
15 premeditated murder shall not be imposed unless the fact that the attempted murder was
willful, deliberate, and premeditated is charged in the accusatory pleading and admitted
or found to be true by the trier of fact."
In Favor, the court held that a jury could rely on the natural and probable
consequences doctrine in finding an aider and abettor guilty of the crime of attempted
murder and that a jury's separate determination that the crime attempted was first degree
murder would apply to the aider and abettor, even if the aider and abettor did not act with
willfulness, deliberation and premeditation: "Because section 664(a) 'requires only that
the attempted murder itself was willful, deliberate, and premeditated' [citation], it is only
necessary that the attempted murder 'be committed by one of the perpetrators with the
requisite state of mind.' [Citation.] Moreover, the jury does not decide the truth of the
penalty premeditation allegation until it first has reached a verdict on the substantive
offense of attempted murder. [Citation.] Thus, with respect to the natural and probable
consequences doctrine as applied to the premeditation allegation under section 664(a),
attempted murder—not attempted premeditated murder—qualifies as the nontarget
offense to which the jury must find foreseeability. Accordingly, once the jury finds that
an aider and abettor, in general or under the natural and probable consequences doctrine,
has committed an attempted murder, it separately determines whether the attempted
murder was willful, deliberate, and premeditated.
"Under the natural and probable consequences doctrine, there is no requirement
that an aider and abettor reasonably foresee an attempted premeditated murder as the
natural and probable consequence of the target offense. It is sufficient that attempted
murder is a reasonably foreseeable consequence of the crime aided and abetted, and the
16 attempted murder itself was committed willfully, deliberately and with premeditation."
(Favor, supra, 54 Cal.4th at pp. 879-880, italics omitted.)
In Chiu, the court took some pains to distinguish Favor: "Relying on Favor, the
People urge us to reach the same result here. However, we find that case distinguishable
in several respects. Unlike Favor, the issue in the present case does not involve the
determination of legislative intent as to whom a statute applies. Also, unlike Favor,
which involved the determination of premeditation as a requirement for a statutory
penalty provision, premeditation and deliberation as it relates to murder is an element of
first degree murder. In reaching our result in Favor, we expressly distinguished the
penalty provision at issue there from the substantive crime of first degree premeditated
murder on the ground that the latter statute involved a different degree of the offense.
(Favor, supra, 54 Cal.4th at pp. 876–877.) Finally, the consequence of imposing liability
for the penalty provision in Favor is considerably less severe than in imposing liability
for first degree murder under the natural and probable consequences doctrine. Section
664(a) provides that a defendant convicted of attempted murder is subject to a
determinate term of five, seven, or nine years. If the jury finds the premeditation
allegation true, the defendant is subject to a sentence of life with the possibility of parole.
(Ibid.) With that life sentence, a defendant is eligible for parole after serving a term of at
least seven years. (§ 3046, subd. (a)(1).) On the other hand, a defendant convicted of
first degree murder must serve a sentence of 25 years to life. (§ 190, subd. (a).) He or
she must serve a minimum term of 25 years before parole eligibility. (§ 3046, subd.
(a)(2).) A defendant convicted of second degree murder must serve a sentence of 15
17 years to life, with a minimum term of 15 years before parole eligibility. (§§ 190, subd.
(a), 3046, subd. (a)(2).)" (Chiu, supra, 59 Cal.4th at p. 163, italics omitted.)
In light of the holding in Favor, and the court's express unwillingness in Chiu to
depart from it, we are in no position to question its validity. (See Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, the trial court did not err in
permitting the jury to rely on the natural and probable consequences theory in finding that
Rivas attempted to murder Raul Acosta and that the attempt was willful, premeditated
and deliberate.
B. Aider and Abettor Instructions
The trial court instructed the jury with CALCRIM Nos. 400 and 401, which set
forth the general principles of aider and abettor culpability.2 On appeal, Rivas argues
2 The version of CALCRIM No. 400 that the trial court provided stated: "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." The version of CALCRIM No. 401 which the trial court provided, stated: "To prove that defendant Lilia Teresa Rivas is guilty of a crime based on aiding and abetting that crime, the People must prove that: "1. The perpetrator committed the crime; "2. The defendant Lilia Teresa Rivas knew that the perpetrator intended to commit the crime; "3. Before or during the commission of the crime, the defendant Lilia Teresa Rivas intended to aid and abet the perpetrator in committing the crime; "AND "4. The defendant Lilia Teresa Rivas'[s] words or conduct did in fact aid and abet the perpetrator's commission of the crime. 18 that the trial court erred in failing to sua sponte instruct the jury that it could find that
Rivas was guilty of a lesser crime than Cortez. We find no such duty.
1. Legal Principles
We agree with Rivas that an aider and abettor may be convicted of a lesser offense
than the principal or perpetrator; importantly, however, an aider and abettor may also be
convicted of a greater offense. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117;
People v. Lopez (2011) 198 Cal.App.4th 1106, 1118.) We have not found, and Rivas has
not cited, any case in which a sua sponte duty to explain these principles has been
imposed on trial courts, when as here the jury has been accurately instructed on the
principles governing aider and abettor culpability. In the absence of such authority, we
are governed by the general principal, that "[a] trial court has no sua sponte duty to revise
or improve upon an accurate statement of law without a request from counsel [citation],
and failure to request clarification of an otherwise correct instruction forfeits the claim of
error for purposes of appeal. [Citations.]" (People v. Lee (2011) 51 Cal.4th 620, 638.)
We also reject Rivas's related claim that her counsel was ineffective in failing to
ask for a pinpoint instruction on the possibility she may have committed lesser crimes
than Cortez. In light of Rivas's role in fighting with Adrian and the legal possibility that
Rivas might be found guilty of greater crimes than Cortez, counsel's failure to seek a
pinpoint instruction on this issue may well have represented a tactical choice to focus on
"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. "If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor." 19 rebutting application of the natural and probable consequence doctrine and avoid any
discussion of the possibility Rivas was guilty of greater crimes. Where such tactical
possibilities appear on the face of the record, a claim of ineffective assistance of counsel
will not prevail. (See People v. Mai (2013) 57 Cal.4th 986, 1009.)
C. Juror Information
1. Trial Court Proceedings
Following the jury's verdict, Rivas filed a petition under Code of Civil Procedure
section 206, subdivision (g) in which she sought an order releasing the jurors' names,
addresses, and telephone numbers. In support of the motion, she relied on statements
Juror No. 7 made to her counsel after trial and in a written declaration. In her oral
statement to counsel and in her written declaration, the juror stated that the jury believed
that, having found Cortez guilty of first degree murder, and having found that Rivas was
an aider or abettor, it had no choice other than to also find Rivas guilty of first degree
murder. The trial court denied Rivas's petition.
2. Legal Principles
Code of Civil Procedure section 206, subdivision (g) permits a defendant to
request the release of sealed juror information upon a showing of good cause within the
meaning of Code of Civil Procedure section 237. (See People v. Wilson (1996) 43
Cal.App.4th 839, 852.) To show good cause, a defendant must make a showing that
supports "a reasonable belief that jury misconduct occurred." (People v. Jones (1998) 17
Cal.4th 279, 317.) Importantly, under Evidence Code section 1150, subdivision (a),
"evidence about a jury's 'subjective collective mental process purporting to show how the
verdict was reached' is inadmissible . . . where . . . they 'at most suggest "deliberative
20 error" in the jury's collective mental process--confusion, misunderstanding, and
misinterpretation of the law.' [Citations.]" (Mesecher v. County of San Diego (1992) 9
Cal.App.4th 1677, 1683.)
3. Analysis
Here, Juror No. 7's statements were clearly inadmissible under Evidence Code
1150, subdivision (a) as they only reflected the jury's deliberative processes and would
not support any finding of juror misconduct. In the absence of any evidence of
misconduct, there was no good cause for the release of juror information; hence, the trial
court did not abuse its discretion in denying Rivas's petition.
DISPOSITION
Rivas's conviction of first degree murder is reversed and remanded for further
proceedings. As in Chiu, the People may accept a reduction of the conviction to second
degree murder or retry the greater offense. In all other respects, the judgments of
conviction are affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J.