Filed 8/18/14 P. v. Perez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055735
v. (Super.Ct.No. RIF112730)
EZEKIEL PEREZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michele D. Levine,
Judge. Affirmed.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
and Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.
1 I. INTRODUCTION
A jury found defendant and appellant Ezekiel Perez, Jr. guilty as charged of the
first degree felony murder of Oscar Carrillo based on the attempted robbery of Carrillo,
and found a gang enhancement allegation true. (Pen Code, §§ 187, subd. (a), 186.22,
subd. (b)(1).)1 Defendant was sentenced to 25 years to life in prison.
Defendant and a codefendant, Leroy Gutierrez, were tried together before separate
juries. Financial gain, lying-in-wait, and criminal street gang special-circumstance
allegations were alleged against defendant and Gutierrez (§ 190.2, subd. (a)(1), (15),
(22)), but all three special-circumstance allegations were dismissed against defendant
before the prosecution presented its case-in-chief against defendant and Gutierrez.2
In arguing the case to defendant’s jury, the green jury, the prosecution claimed
Gutierrez shot and killed Carrillo during an attempted robbery of Carrillo, and defendant
aided and abetted the attempted robbery and resulting murder by driving the getaway car
and providing Gutierrez with the gun used in the crimes. On defendant’s murder charge,
defendant’s jury was instructed solely on first degree felony murder based on robbery and
attempted robbery and not on any other murder theory.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Gutierrez’s jury, the orange jury, found him guilty of the first degree murder of Carrillo, found the lying-in-wait and gang special-circumstance allegations true, and found a gang enhancement allegation true. The financial gain special-circumstance allegation was dismissed against Gutierrez. Gutierrez was sentenced to life in prison without the possibility of parole after his jury deadlocked on whether to recommend the death penalty during the penalty phase. Gutierrez is not a party to this appeal, having abandoned his appeal before filing an opening brief.
2 Defendant claims his murder conviction must be reversed because (1) the court
erroneously admitted the testimony of Veronica Cantu, recounting out-of-court
statements made to her by Gutierrez, who did not testify, suggesting defendant gave
Gutierrez the gun Gutierrez used to kill Carrillo, (2) insufficient evidence supported
instructing the jury on felony murder based on attempted robbery, and (3) the prosecutor
presented inconsistent factual theories to the juries and “made a false argument” to
defendant’s jury, by arguing to Gutierrez’s jury that Gutierrez intended to murder Carrillo
but not rob him, while arguing to defendant’s jury that Gutierrez intended to rob Carrillo,
and defendant shared that intent and aided and abetted an attempted, “botched” robbery
of Carrillo, during which Carrillo was murdered.
We find defendant’s claims without merit and affirm the judgment.
II. BACKGROUND
A. Veronica Cantu’s Testimony Against Defendant
At the time of trial in October 2011, Cantu had known defendant since 1987, when
they were in junior high school together. On the night of September 30, 2003, Cantu,
Gutierrez, defendant, and several other people were smoking methamphetamine at
Cantu’s apartment in Corona. Defendant lived several blocks away from Cantu and was
dating Cantu’s sister, who lived with Cantu, their mother, and Cantu’s two children.
Later during the evening on September 30, Cantu told Gutierrez she was tired of
being broke and having no money. Gutierrez told her he knew how to get some money if
she was “down,” or willing to go along with a plan, and she said, “Yeah, I’m down.”
3 Next, Gutierrez told Cantu, “Well you need to give me a ride to find a gun tonight,” and
Cantu agreed.
Gutierrez left Cantu’s house, and around two hours later, Cantu, accompanied by
Lindsay Parchcorn, picked up Gutierrez and a person named “Mando” at Stefanie
Macias’s house. With Cantu driving, the four of them went to the Riverside/La Sierra
area, looking for a gun.
At one point, they stopped at a gas station, Gutierrez pointed to another gas station
across the street and said, “That’s where it’s going to take place.” At the first gas station,
Gutierrez took over driving for Cantu because she was falling asleep, and drove over to
the second gas station. There was a “tire or lube” business next to the second gas station.
Gutierrez stopped the car on a side street, behind and around one city block from
the second gas station. He told Cantu she was going to wait for him on the side street in
the car, he “was going to come out running,” and she was going to drive the car onto the
91 freeway. To demonstrate the plan, Gutierrez drove onto the 91 freeway, got off on the
next exit, turned into a Stater Bros. parking lot, and said, “we’re going to come here,
we’re going to leave your car here, and my homeboy will be right here waiting for us.”
Cantu later feel asleep while Gutierrez continued driving. They later returned to Corona,
but they did not have a gun. At Cantu’s apartment, Gutierrez dropped off Cantu,
Parchcorn, and another person they picked up in La Sierra who had a methamphetamine
pipe. Gutierrez told Cantu he was going out again to look for a gun because he did not
yet have one.
4 Gutierrez later returned to Cantu’s apartment, still without a gun. At that point,
Cantu told Gutierrez she thought defendant had a gun, and he should ask defendant
whether he could borrow defendant’s gun. In response, Gutierrez said he was going to
ask defendant for a gun and left Cantu’s apartment.
Later during the morning of October 1, and before Cantu went to work around
7:30 a.m., Gutierrez returned to Cantu’s apartment. After Gutierrez returned, Cantu saw
defendant at her apartment, but she did not see defendant and Gutierrez arrive together.
When defendant was at the apartment, but outside of defendant’s presence, Gutierrez
asked Cantu whether she had any methamphetamine to “smoke out” defendant, meaning
let defendant use, in exchange for defendant allowing Gutierrez to use defendant’s gun.
Cantu understood Gutierrez was saying defendant had agreed to let Gutierrez use his gun,
but Cantu did not hear or see Gutierrez and defendant talk about using defendant’s gun.3
Cantu told Gutierrez she did not have any more methamphetamine for defendant,
and began to get ready for work. Before she left for work, she had another conversation
with Gutierrez about the robbery, outside of defendant’s presence. After Gutierrez called
the gas station to see what time it opened, Cantu told him she could not help him during
3 The court instructed defendant’s jury that it could use Gutierrez’s statements, as testified to by Cantu and made outside defendant’s presence, for the limited purpose of evaluating Cantu’s testimony and the subsequent actions of both Gutierrez and defendant, but it could not infer defendant knew Gutierrez and Cantu were planning to commit a robbery because defendant was not present when the statements were made. In contrast, statements attributed by Cantu to Gutierrez regarding what Perez may have said— including that Perez agreed to let Gutierrez use defendant’s gun—were admitted for all purposes.
5 the daytime because she worked. Gutierrez told Cantu he would find another getaway
driver. Cantu understood she would receive half the money from the robbery for letting
Gutierrez use her car.
Gutierrez drove Cantu to work in her car, and kept the car. At this point, Cantu
had not seen a gun, but Gutierrez did not say anything more about not having a gun or
needing to get a gun. Cantu returned to her apartment around noon on October 1,
Gutierrez and defendant were there, and her car was in her garage. Gutierrez was
“pumped up,” and told Cantu words to the effect that he “just pulled up there,” “asked for
Oscar [Carrillo],” and “went bam, bam, bam.” Gutierrez said defendant was driving.
Cantu returned to work around 1:00 p.m., and drove herself in her car. Later that
evening, the police stopped Cantu while she was driving her car and arrested her. After
being shown a picture of her car from a surveillance videotape and being told her car was
used in a shooting, Cantu admitted giving her car to Gutierrez so he could commit a
robbery.
Cantu was charged with murder, but the charge was dismissed after Cantu agreed
to plead guilty to robbery and conspiracy, serve a nine-year sentence, and testify
truthfully. Cantu had served her sentence and was out of custody at the time of defendant
and Gutierrez’s trial in October 2011.
B. Additional Testimony Against Defendant
After Gutierrez took Cantu to work on the morning of October 1, he and defendant
used Cantu’s car to take Macias from Cantu’s apartment to Macias’s home in Corona.
6 Defendant was driving, and as they dropped off Macias Gutierrez told her something to
the effect that he was going to take care of something and would call her later. Later that
day, Macias learned that a person named Oscar had been murdered.
Around 10:30 a.m. on October 1, Carrillo was shot and killed in front of the
garage bay where he was working at the Lube Express on the corner of Magnolia and
Pierce. A gas station was adjacent to the Lube Express building.
Witnesses saw a gray car, later identified as Cantu’s car, pull in front of the garage
bay where Carrillo was working, saw the passenger, later identified as Gutierrez, make a
hand motion toward Carrillo to come to the car, and saw Carrillo approach the car. As
Carrillo approached or was near the car, Gutierrez fired multiple bullets at him, striking
him with six bullets. The driver of the car, later identified as defendant, sped away and
drove onto the eastbound 91 freeway.
Around 30 minutes before Carrillo was shot, Jonathan Silva, who was working at
the Lube Express with Carrillo, noticed the gray car parked in front of the gas station near
the Lube Express. At that time, Gutierrez walked up to Silva and Carrillo, began talking
about problems with his car, and asked for a job application. Although Carrillo said they
were hiring, Gutierrez did not take an application. Instead, he continued talking about his
car; the entire conversation lasted a minute or two. No threats or demands were made,
and it did not appear to Silva that Carrillo and Gutierrez knew each other. Gutierrez
returned to the car and drove away. No one else was in the car.
7 The car returned a second time around 20 minutes later. This time, two people
were in the car; a man later identified as defendant was driving, and Gutierrez was in the
front passenger seat. From the passenger seat, Gutierrez called to Carrillo, saying the car
was making a noise and asking Carrillo to take a test drive with him, but Carrillo
declined.
The car left and returned a third time, when the shooting occurred. Defendant was
still driving, Gutierrez was still in the front passenger seat, and this time two women were
in the backseat. From the passenger seat, Gutierrez called to Carrillo, saying he had a
part for the car. Carrillo approached the car, Silva heard gunshots, and saw Carrillo fall
to the ground. No one threatened Carrillo or demanded money.
On October 23, 2003, the policed conducted a traffic stop of defendant’s father in
an effort to locate defendant. Defendant was in the camper shell of the truck, and was
taken into custody and arrested. It appeared defendant had dyed his hair with blonde
streaks.
C. Defendant’s Recorded Jail Call
The jury heard a recording of a telephone call defendant made using a pay phone
at the jail. During the call, a woman read defendant a newspaper article about the murder
and arrests, and defendant became upset when he heard Cantu was cooperating with the
police. Defendant concluded the conversation by telling the woman, “I already told them
[the police] I was there.”
8 D. Stipulations
The parties entered into several stipulations, including that (1) both defendant and
Gutierrez were members of Corona Varios Locos, a criminal street gang within the
meaning of section 186.22, subdivision (f), (2) on October 2, 2003, when police were
conducting a stakeout of Gutierrez to arrest him for the murder of Carrillo, Gutierrez said
to someone via cell phone: “That bitch don’t know what I did. I’m not going out like
that. Yeah, I know I’m hot. I might need to lay low for a while or skate town. I’m not
going out like that. You know what I’m saying?,” and (3) after Gutierrez made these
statements, officers tried to arrest him, but he fled on foot, was captured, and was taken
into custody.
III. DISCUSSION
A. Cantu’s Testimony Attributing Statements to Gutierrez Was Properly Admitted
Before Cantu testified, defendant objected to allowing her to testify to statements
Gutierrez made to her outside defendant’s presence and suggesting that defendant agreed
to give Gutierrez the gun Gutierrez used to shoot Carrillo in exchange for some
methamphetamine, and that defendant was driving when the shooting occurred. The
objections were made on the grounds the statements were hearsay and violated
defendant’s Sixth Amendment confrontation rights under the Aranda/Bruton4 rule, which
4People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).
9 prohibits a nontestifying defendant’s confession from being admitted against a
codefendant in a joint trial.
The court ruled Gutierrez’s statements did not violate defendant’s confrontation
rights because they were not testimonial, and the statements were admissible under the
declarations against interest exception to the hearsay rule. (Evid. Code, § 1230.) Here,
defendant does not claim the statements were testimonial, and he concedes Gutierrez was
unavailable to testify. (See People v. Duarte (2000) 24 Cal.4th 603, 609 [witness’s
invocation of Fifth Amendment right against self-incrimination establishes witness’s
unavailability to testify].) Instead, defendant claims the statements were inadmissible
hearsay (Evid. Code, § 1200) because they were not specifically disserving to Gutierrez’s
penal interests and were untrustworthy (Evid. Code, § 1230). He also claims the
statements violated his confrontation rights under Aranda/Bruton because they were
unaccompanied by “particularized guarantees of trustworthiness.” Neither claim has
merit.
1. Evidence Code Section 1230
Under Evidence Code section 1230: “Evidence of a statement by a declarant
having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and the statement, when made, . . . so far
subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position
would not have made the statement unless he believed it to be true.” The proponent of
such evidence must show (1) the declarant is unavailable, (2) the declaration was against
10 the declarant’s penal interest when made, and (3) the declaration was sufficiently reliable
or trustworthy to warrant admission despite its hearsay character. (People v. Duarte,
supra, 24 Cal.4th at pp. 609-610; People v. Brown (2003) 31 Cal.4th 518, 535.)
As noted, defendant concedes Gutierrez was unavailable to testify, but argues that
Gutierrez’s statement to Cantu about “smoking out” defendant for providing a gun to use
in the robbery were “collateral assertions” not specifically disserving to Gutierrez’s penal
interests. The declarations against penal interest exception to the hearsay rule does not
extend to “collateral assertions” not specifically disserving of the declarant’s penal
interest. (People v. Duarte, supra, 24 Cal.4th at p. 612 [“we long ago determined that
‘the hearsay exception should not apply to collateral assertions within declarations
against penal interest.’”].) In addition, a hearsay statement “‘which is in part inculpatory
and in part exculpatory (e.g., one which admits some complicity but places the major
responsibility on others)’” does not qualify as a statement against penal interest because it
does not meet the test of trustworthiness. (Ibid.) But a statement can both incriminate
others and be specifically disserving to the declarant’s penal interests, and such
statements are admissible if they are trustworthy. (People v. Greenberger (1997) 58
Cal.App.4th 298, 335.) Indeed, “‘“[t]he focus of the declaration against interest
exception to the hearsay rule is the basic trustworthiness of the declaration.
[Citations.]”’” (People v. Tran (2013) 215 Cal.App.4th 1207, 1216 (Tran).)
“‘There is no litmus test for the determination of whether a statement is
trustworthy and falls within the declaration against interest exception. The trial court
11 must look to the totality of the circumstances in which the statement was made, whether
the declarant spoke from personal knowledge, the possible motivation of the declarant,
what was actually said by the declarant and anything else relevant to the inquiry. . . .’”
(Tran, supra, 215 Cal.App.4th at p. 1217, quoting People v. Greenberger, supra, 58
Cal.App.4th at pp. 334-335; accord, People v. Cervantes (2004) 118 Cal.App.4th 162,
174-175.)
Courts have recognized that the least trustworthy or reliable circumstance obtains
when the declarant has been arrested and attempts to improve his situation with the police
by deflecting criminal responsibility onto others. (Tran, supra, 215 Cal.App.4th at p.
1217.) But courts have “found a strong assurance of trustworthiness” when the statement
is made in a “purely private, personal setting,” or in a “‘“conversation . . . between
friends in a noncoercive setting that fosters uninhibited disclosures.”’ [Citations.]”
(Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)
We independently review the trial court’s preliminary determination whether a
hearsay statement is sufficiently trustworthy to qualify as a declaration against penal
interest—the same standard courts have traditionally applied in determining whether a
hearsay statement bears sufficient indicia of trustworthiness to satisfy the confrontation
clause. (Tran, supra, 215 Cal.App.4th at pp. 217-218; People v. Cervantes, supra, 118
Cal.App.4th at pp. 174-175; Lilly v. Virginia (1999) 527 U.S. 116, 137 [independent
review applies in determining whether a hearsay statement has sufficient “guarantees of
trustworthiness” to satisfy the confrontation clause].) In contrast, we review the trial
12 court’s ultimate decision to admit or exclude the statement for an abuse of discretion,
bearing in mind that the scope of the court’s discretion is limited by the applicable law
and reversal is appropriate only when there is no reasonable basis for the court’s ruling.
(Tran, supra, at pp. 1217-1218; People v. Brown (2003) 31 Cal.4th 518, 534 [evidentiary
rulings reviewed for abuse of discretion].)
Based on all the relevant circumstances, we independently conclude Gutierrez’s
statement to Cantu, asking her whether she had any methamphetamine to give defendant
in exchange for the use of defendant’s gun, was both specifically disserving to
Gutierrez’s interests and sufficiently trustworthy to be admitted as a declaration against
Gutierrez’s penal interests, notwithstanding its hearsay character. First, Cantu gave
detailed testimony that she, Gutierrez, and others spent the night before the murder
driving around in Cantu’s car while Gutierrez was looking for a gun to use in a robbery
Gutierrez was planning with Cantu. As they were driving, Gutierrez told Cantu the
robbery was going to occur at the gas station next to the Lube Express where Gutierrez
later shot and killed Carrillo. Without having found a gun, Gutierrez and Cantu returned
to Cantu’s apartment during the early morning hours of October 1.
Cantu then told Gutierrez she thought defendant had a gun. Defendant lived a
short distance away from Cantu’s apartment; Gutierrez left the apartment, and when he
returned a short time later Cantu saw that defendant was also in her apartment. Outside
defendant’s presence, but while defendant was in the immediate vicinity and Cantu could
have easily spoken to him, Gutierrez asked Cantu whether she had any more
13 methamphetamine to “smoke out” or give to defendant in exchange for defendant
providing him (Gutierrez) with a gun to use in the robbery.
Gutierrez’s statement to Cantu, asking her for methamphetamine to give defendant
in exchange for the use of defendant’s gun in the robbery Gutierrez was planning with
Cantu, was specifically disserving to Gutierrez’s penal interests because it directly
implicated him in a conspiracy to rob a gas station. (See §§ 182, subd. (a)(1), 184, 211.)
The statement was also trustworthy because it did not attempt to shift blame to defendant
or anyone else. Gutierrez was no less culpable for conspiring to commit robbery because
defendant was providing him with a gun to commit the robbery. (Cf. People v. Duarte,
supra, 24 Cal.4th at pp. 613-617 [statements to police minimizing the declarant’s
responsibility for a shooting and making declarant look more sympathetic than his
accomplice not specifically disserving to the declarant’s penal interests and
untrustworthy].) Cantu’s detailed testimony concerning Gutierrez’s search for a gun
earlier that morning also support the statement’s reliability.
Defendant argues the statement was untrustworthy because Gutierrez apparently
lied to Cantu when he told her he was going to rob a gas station, and his true intent was to
obtain Cantu’s car, and defendant’s gun, to use in murdering Carrillo. But defendant
offers no reason why Gutierrez would lie to Cantu about wanting to give defendant drugs
in exchange for the use of defendant’s gun. Gutierrez’s prior search for a gun, as testified
to by Cantu, and his subsequent use of a gun in the shooting of Carrillo, strongly indicate
14 he was not lying to Cantu when he indicated defendant was agreeing to let Gutierrez use
defendant’s gun in exchange for methamphetamine.
2. Aranda/Bruton
For the same reasons he claims Gutierrez’s statement to Cantu did not qualify as a
statement against Gutierrez’s penal interests, defendant claims the admission of the
statement violated his confrontation rights under the Aranda/Bruton rule. We reject this
claim for the same reasons we rejected defendant’s state law evidentiary claim.
In Bruton, a nontestifying defendant’s confession that he and his codefendant
committed a robbery was admitted against the defendant in their joint trial. (Bruton,
supra, 391 U.S. at p. 126.) The confession was hearsay, did not fall under any exception
to the hearsay rule, and the jury was instructed to consider the confession only against the
defendant who made the confession. (Id. at pp. 124-125, 129.) Despite the instruction
not to consider the statement against the codefendant, the high court ruled the admission
of the confession in the joint trial violated the codefendant’s Sixth Amendment
confrontation rights. (Id. at pp. 126-128, fn. 3, 137.)
In Aranda, which was decided before Bruton, the California Supreme Court
adopted a judicial rule of practice similar to the rule later adopted in Bruton. (Aranda,
supra, 63 Cal.2d at pp. 530-531.) But to the extent Aranda requires the exclusion of
evidence that is not required to be excluded under federal constitutional law, it was
abrogated by the 1982 enactment of the “truth-in-evidence” provision of Proposition 8.
(Cal. Const., art. I, § 28, subd. (d); People v. Fletcher (1996) 13 Cal.4th 451, 465.)
15 In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the high court held
that only testimonial hearsay statements violate a criminal defendant’s Sixth Amendment
confrontation rights. Such testimonial hearsay statements are admissible only if the
declarant is unavailable to testify and the defendant had a prior opportunity to cross-
examine the declarant about the statement. (Crawford, supra, at p. 59; see also Davis v.
Washington (2006) 547 U.S. 813, 821 [clarifying that only testimonial statements cause a
declarant to be a “witness” within the meaning of the confrontation clause, and “[i]t is the
testimonial character of the statement that separates it from other hearsay that, while
subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.”].)
In the wake of Crawford and Davis, numerous state and federal court cases,
including decisions issued by the United States and the California Supreme Courts, have
recognized that the confrontation clause is violated only by the erroneous admission of
testimonial hearsay statements. (See, e.g., Whorton v. Bockting (2007) 549 U.S. 406, 420
[Crawford eliminated “Confrontation Clause protection against the admission of
unreliable out-of-court nontestimonial statements”]; People v. Loy (2011) 52 Cal.4th 46,
66 [“‘Only the admission of testimonial hearsay statements violates the confrontation
clause’”]; see also People v. Arceo (2011) 195 Cal.App.4th 556, 574-575 & fn. 12
[discussing cases and coming to the same conclusion].) As noted, defendant does not
claim that Gutierrez’s statement to Cantu was testimonial. Thus, its admission did not
violate defendant’s confrontation rights.
16 B. Substantial Evidence Supports Defendant’s First Degree Felony Murder Conviction
Based on Robbery or Attempted Robbery
Defendant’s jury was instructed on first degree felony murder based on robbery or
attempted robbery, and not on any other murder theory.5 Defendant claims insufficient
evidence supports his felony murder conviction for two reasons: (1) there was
insufficient evidence he knew Gutierrez was going to rob Carrillo or intended to aid and
abet Gutierrez in robbing Carrillo; and (2) there was insufficient evidence of a causal or
temporal relationship between any robbery or attempted robbery of the gas station and
the shooting of Carrillo.
1. Applicable Legal Principles
The applicable standard of review is well settled. In reviewing a challenge to the
sufficiency of the evidence supporting a criminal conviction, we review the entire record
in the light most favorable to the judgment to determine whether it contains substantial
5 Defendant’s jury was instructed: “The defendant is charged in Count 1 with first-degree murder, under a theory of Felony Murder. [¶] The defendant may be guilty of murder under a theory of Felony Murder even if another person did the act that resulted in the death. I will call the other person the perpetrator. [¶] To prove that the defendant is guilty of first-degree murder under this theory, the People must prove that: [¶] One, the defendant attempted to commit or aided and abetted a robbery or attempted robbery; [¶] Two, the defendant intended to commit or intended to aid and abet the perpetrator in committing a robbery or attempted robbery; [¶] Three, if the defendant did not personally commit or attempt to commit a robbery, then a perpetrator whom the defendant was aiding and abetting personally committed or attempted to commit a robbery; [¶] Four, while committing or attempting to commit a robbery, the perpetrator caused the death of another person; and [¶] Five, there was a logical connection between the cause of death and the commission or attempted commission of the robbery. The connection between the cause of death and the robbery or attempted robbery must involve more than just their occurrence at the same time and place.”
17 evidence—that is, reasonable, credible evidence of solid value—upon which a jury
comprised of rational persons could have found the defendant guilty of the crime beyond
a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
A killing committed in the perpetration of an attempted robbery or robbery is first
degree murder. (§ 189.) And “[u]nder long-established rules of criminal complicity,
liability for such a murder extends to all persons ‘jointly engaged at the time of such
killing in the perpetration of or an attempt to perpetrate the crime of robbery’ [citation]
‘when one of them kills while acting in furtherance of the common design.’ [Citation.]”
(People v. Pulido (1997) 15 Cal.4th 713, 716, italics added.)
Robbery is the felonious taking of personal property in the possession of another,
from his person and immediate presence and against his will, accomplished by means of
force or fear and with the specific intent to permanently deprive him of the property.
(§ 211; People v. Clark (2011) 52 Cal.4th 856, 943.) Attempted robbery requires neither
the commission of an element of robbery nor the completion of a theft or assault; instead,
it requires a specific intent to commit robbery and a direct but ineffectual act towards its
commission. (People v. Lindberg (2008) 45 Cal.4th 1, 24, 27.)
The specific intent to commit robbery is the mental state element required for first
degree felony murder based on robbery or an attempt to commit robbery. (People v.
Friend (2009) 47 Cal.4th 1, 49.) “[A]n aider and abettor will ‘share’ the perpetrator’s
specific intent when he or she knows the full extent of the perpetrator’s criminal purpose
18 and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s
commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
A jury may infer that a defendant harbored a specific intent to commit robbery, or
any crime, from all of the facts and circumstances shown by the evidence. (People v.
Lindberg, supra, 45 Cal.4th at p. 27, citing People v. Bloom (1989) 48 Cal.3d 1194, 1208
[“Evidence of a defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to support a conviction.”].)
2. Substantial Evidence Shows Defendant Intended to Aid and Abet a Robbery
Defendant argues the evidence did not permit a reasonable inference he harbored a
specific intent to commit a robbery, the mental state necessary to convict him of the first
degree felony murder of Carrillo based on robbery or attempted robbery. Defendant
points out that even though he was at Cantu’s apartment when Cantu and Gutierrez
discussed robbing the gas station, there was no evidence he overheard their conversation
or that either of them told him about their plan to rob the gas station. He also argues
Gutierrez must have lied to Cantu about robbing the gas station; and Gutierrez’s true
intent was to shoot and kill Carrillo, not rob anyone.
We conclude the jury could have reasonably inferred defendant believed Gutierrez
was going to commit a robbery and that defendant intended to aid and abet Gutierrez in
the commission of that robbery. First, defendant’s jury was instructed it could use
Gutierrez’s statements, as testified to by Cantu and made outside defendant’s presence,
for the limited purpose of evaluating Cantu’s testimony and the subsequent actions of
19 both Gutierrez and defendant, but it could not use the statements to infer defendant knew
Gutierrez and Cantu were planning to commit a robbery, because defendant was not
present when the statements were made.
But the court did not limit the jury’s use of Gutierrez’s statements for any other
purpose, and the statements supported a reasonable inference that defendant had in fact
agreed to let Gutierrez use his gun in a robbery in exchange for some methamphetamine.
Defendant was at Cantu’s apartment on the morning of October 1 and was in the
immediate vicinity of Cantu and Gutierrez when Gutierrez asked Cantu whether she had
any methamphetamine to give defendant in exchange for the use of defendant’s gun.
Accordingly, Cantu could have easily asked defendant whether he was, in fact, agreeing
to lend his gun to Gutierrez so Gutierrez could use it in a robbery. Defendant’s
immediate availability for questioning by Cantu on the point bolstered the reasonableness
of the inference that defendant had, in fact, agreed to lend his gun to Gutierrez for
Gutierrez’s use in a robbery.
Defendant’s and Gutierrez’s subsequent actions in the 30 minutes or so before the
shooting occurred also supported a reasonable inference that defendant intended to aid
and abet Gutierrez in committing a robbery by driving the getaway car. Some 30 minutes
before the shooting, Gutierrez approached Silva and Carrillo from the gas station, where
Silva saw that Cantu’s car was parked. At that time, Gutierrez briefly spoke to Silva and
Cantu, asking for a job application and talking about problems with Cantu’s car, then he
left. Around 20 minutes later, defendant, driving Cantu’s car, drove Gutierrez to the front
20 of the Lube Express where Gutierrez attempted to lure Carrillo into the car. After
Carrillo refused to get into the car, defendant drove away with Gutierrez, then returned a
third time when Gutierrez again tried to engage Carrillo in conversation just before he
shot him. After the shooting, defendant sped away and drove onto the 91 freeway, in
conformity with the robbery plan which Cantu and Gutierrez had discussed earlier.
All of this evidence supports a reasonable inference—not a speculative inference
or mere suspicion6—that defendant believed Gutierrez intended to commit a robbery of
Carrillo at the Lube Express and that defendant intended to aid and abet Gutierrez in the
commission of that robbery, by driving the getaway car and providing the gun. In sum,
defendant’s and Gutierrez’s actions preceding the shooting, in light of the previous
discussion between Cantu and Gutierrez about their plan to rob the gas station, supported
a reasonable inference that defendant believed Gutierrez intended to rob Carrillo at the
Lube Express and intended to aid and abet Gutierrez in committing that robbery—even if
Gutierrez never truly intended to commit any robbery but only intended to shoot and kill
Carrillo.
6 We recognize that evidence which merely raises a suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises the possibility, and this is not a sufficient basis for an inference of fact. (People v. Reyes (1974) 12 Cal.3d 486, 500; People v. Morris (1988) 46 Cal.3d 1, 21 [a reasonable factual inference may not be based on “‘suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’”].)
21 3. Substantial Evidence Shows the Attempted or Aborted Robbery of Carrillo and
the Shooting of Carrillo Were Part of One Continuous Transaction
“[T]he felony-murder rule requires both a causal relationship and a temporal
relationship between the underlying felony and the act resulting in death. The causal
relationship is established by proof of a logical nexus, beyond mere coincidence of time
and place, between the homicidal act and the underlying felony . . . . The temporal
relationship is established by proof the felony and the homicidal act were part of one
continuous transaction.” (People v. Cavitt (2004) 33 Cal.4th 187, 193.)
In other words, “[t]he killing is considered to be committed in the perpetration of
the underlying felony if the acts were part of a continuous transaction. [Citation.] No
strict causal or temporal relationship between the murder and underlying felony is
required. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 175.)7
Defendant argues there was insufficient evidence of either a causal or a temporal
relationship between the aborted robbery of the gas station and the murder of Carrillo.
7 The jury was instructed pursuant to CALCRIM No. 549 that: “In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: [¶] One, whether the felony and the fatal act occurred at the same place; [¶] Two, the time period, if any, between the felony and the fatal act; [¶] Three, whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony; [¶] Four, whether the fatal act occurred after the felony but while the perpetrator continued to exercise control over the person who was the target of the felony; [¶] Five, whether the fatal act occurred while the perpetrator was fleeing from the scene of the felony or otherwise trying to prevent the discovery of [sic] reporting the crime; [¶] Six, whether the felony was the direct cause of the death; and [¶] Seven, whether the death was the natural and probable consequence of the felony.”
22 Because Gutierrez’s efforts focused on Carrillo at the Lube Express and not the gas
station he discussed with Cantu, defendant argues there was no attempted robbery; thus
there was no continuous transaction between the nonexistent attempted robbery and the
shooting of Carrillo. Defendant also asserts that because the evidence shows Gutierrez
only intended to kill Carrillo and not rob him, there was no logical nexus between the
nonexistent attempted robbery and the shooting.
Defendant’s arguments are based on his self-serving view of the evidence and
ignore evidence that supports a contrary view. For the reasons discussed, defendant’s
and Gutierrez’s actions immediately preceding the shooting support a reasonable
inference that defendant believed Gutierrez intended to rob Carrillo at the Lube Express,
and that defendant intended to aid and abet Gutierrez in the commission of that robbery.
In short, the evidence shows defendant and Gutierrez were attempting to rob Carrillo,
first when they approached Carrillo in the car and asked him to take a ride with them, and
later when they returned and called Carrillo to the car a second time. That Gutierrez
decided to target Carrillo at the Lube Express for a robbery rather than the gas station, or
that Gutierrez never intended to commit a robbery in the first place, is immaterial to
whether defendant believed a robbery was to take place and intended to aid and abet
Gutierrez in the commission of that robbery. Because substantial evidence shows
Carrillo was the target of defendant’s intended robbery, there was a logical nexus
between the attempted or aborted robbery of Carrillo and Carrillo’s murder.
23 C. The Prosecutor Did Not Commit Misconduct in Relying on Different Legal and
Factual Theories to Convict Defendant and Gutierrez
Lastly, defendant claims the prosecutor committed misconduct in relying on two
different theories to convict him and Gutierrez of first degree murder. The essence of
defendant’s argument is that the two theories were inconsistent and irreconcilable, but
that is not the case.
To support his claim, defendant relies on In re Sakarias (2005) 35 Cal.4th 140, a
habeas proceeding involving two defendants who were convicted in separate trials of
murdering a woman with a hatchet and a knife. (Id. at p. 144.) Each defendant
participated in the fatal attack on the woman, but in each trial the prosecutor presented
selected portions of the evidence and inconsistently claimed each defendant inflicted all
the fatal “chopping” wounds with the hatchet blade, when all of the evidence showed
only one defendant could have inflicted those wounds. (Id. at pp. 147-148.) Each
defendant was convicted of first degree murder with special circumstances and was
sentenced to death. (Id. at p. 144.)
In reversing the conviction of the defendant who was prejudiced by the
prosecutor’s presentation of what was clearly a false factual theory, the court explained:
“[F]undamental fairness does not permit the People, without a good faith justification, to
attribute to two defendants, in separate trials, a criminal act only one defendant could
have committed.” (In re Sakarias, supra, 35 Cal.4th at pp. 155-156.) The court
continued: “[W]e hold that the People’s use of irreconcilable theories of guilt or
24 culpability, unjustified by a good faith justification for the inconsistency, is
fundamentally unfair, for it necessarily creates the potential for—and, where prejudicial,
actually achieves—a false conviction or increased punishment on a false factual basis for
one of the accuseds.” (Id. at pp. 159-160.)
Sakarias was distinguished in People v. Richardson (2008) 43 Cal.4th 959,
another case involving two defendants who were convicted in separate trials of murdering
the same woman. (Id. at p. 1015.) Unlike the prosecutor in Sakarias, the prosecutors in
Richardson did not rely on inconsistent factual theories to convict each defendant.
Instead, in both trials the prosecution consistently claimed that defendant Richardson was
the actual killer while his codefendant, Brown, acted as an aider and abettor. (People v.
Richardson, supra, at pp. 1015-1016.) The court in Richardson observed: “Variations in
emphasis where, as here, the underlying theory of the case was consistent at both trials,
does not amount to inconsistent and irreconcilable theories.” (Id. at p. 1017.)
Here, defendant complains that the prosecutor argued to Gutierrez’s jury, the
orange jury, that Gutierrez never intended to rob the gas station or Carrillo, and intended
all along to simply shoot and kill Carrillo on behalf of his fellow Corona Varios Locos
gang member, Tommy Pena, because Carrillo was a “snitch.” In contrast, the prosecutor
argued to defendant’s jury, the green jury, that Gutierrez intended to rob Carrillo but shot
and killed Carrillo before he could obtain any money from him—i.e., an attempted
robbery of Carrillo.
25 The problem with defendant’s argument is that the varying intents the prosecutor
ascribed to Gutierrez before each jury are not inconsistent. Based on all of the evidence,
Gutierrez could have intended to rob Carrillo before he intentionally shot and killed him
for being a snitch, but decided to abort the robbery after Carrillo refused Gutierrez’s
request that he get into Cantu’s car for a test drive. The prosecutor consistently argued to
both juries that Gutierrez was the shooter and defendant was the aider and abettor.
Additionally, the legal theory presented to Gutierrez’s jury was that Gutierrez
intentionally killed Carrillo by means of lying in wait (§ 190.2, subd. (a)(15)) and for the
benefit of his gang (§ 190.2, subd. (a)(22)), not whether Gutierrez killed Carrillo during a
robbery or attempted robbery (§ 189). As the People point out, the prosecutor’s argument
to Gutierrez’s jury “can best be seen as an effort to get [Gutierrez’s] jury to focus on
whether or not Gutierrez engaged in targeted killing” for the benefit of his gang.
The verdict against Gutierrez is entirely consistent with (1) Gutierrez’s having an
initial but aborted intent to rob Carrillo and (2) the verdict finding defendant guilty of
first degree felony murder based on robbery or attempted robbery. The prosecutor did
not present a false factual theory to either jury. Accordingly, the verdict against
defendant was not obtained by fundamentally unfair means in violation of his due process
rights. (In re Sakarias, supra, 35 Cal.4th at pp. 159-160.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
26 KING J.
We concur:
RAMIREZ P. J.
McKINSTER J.