40 Cal.App.5th 772
Cal. Ct. App.2019Background
- Defendant Victor Gastelum was convicted by a jury of first‑degree murder with the lying‑in‑wait special circumstance (Rodgers) and premeditated attempted murder (J.W.), with findings he knew a co‑principal was armed; sentenced to consecutive life terms (including LWOP) plus three years.
- Earlier the day of the shooting J.W. had punched Gastelum after a dispute over a speaker; later Gastelum and his cousin Jacob Gamboa sought out J.W. and others at a gas station.
- Gamboa fired a single gun: Rodgers was killed (multiple shots) and J.W. and L.M. were wounded. Surveillance showed the defendants approached circuitously; cell‑phone video recorded post‑shooting celebrations and admissions by Gastelum and Gamboa.
- Prosecution advanced two theories for Rodgers’s murder: (a) direct aiding and abetting; and (b) aider‑and‑abettor liability under the natural‑and‑probable‑consequences (NPC) doctrine (target offense = attempted murder of J.W.; nontarget = lying‑in‑wait murder of Rodgers).
- The trial court instructed on CALCRIM No. 402 (NPC), CALCRIM No. 521 (lying‑in‑wait elements), and CALCRIM No. 702 (special circumstance for lying‑in‑wait requiring intent to kill but not specifying the victim).
- On appeal Gastelum argued (1) under People v. Chiu NPC cannot be used to convict of first‑degree lying‑in‑wait murder, and (2) the special‑circumstance instruction was defective for not identifying whom he intended to kill. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aider‑and‑abettor liability under the natural‑and‑probable‑consequences doctrine can support a conviction for first‑degree lying‑in‑wait murder | NPC valid here because lying‑in‑wait is defined by objective conduct (concealment, waiting, surprise attack), not a uniquely subjective mental state; Chiu does not extend to lying‑in‑wait | Chiu prohibits using NPC to convict of first‑degree murder; lying‑in‑wait is functionally equivalent to premeditation, so Chiu should apply | Court: Chiu does not bar NPC liability for lying‑in‑wait; lying‑in‑wait is conduct‑based and the exception in Chiu (for subjective premeditation) is inapplicable; instruction was proper |
| Whether the special‑circumstance instruction (requiring intent to kill) was erroneous because it failed to identify the victim | Instruction was lawful and, in any event, defendant forfeited any claim by not objecting at trial | Instruction ambiguous—could allow finding intent as to J.W. rather than Rodgers; counsel ineffective for not seeking clarification | Court: Claim forfeited for failure to object; assuming deficient performance, no prejudice shown because evidence strongly supported intent to kill Rodgers; ineffective‑assistance claim fails |
Key Cases Cited
- People v. Chiu, 59 Cal.4th 155 (2014) (NPC doctrine cannot support aider‑and‑abettor liability for first‑degree premeditated murder because that crime depends on a uniquely subjective, personal mental state)
- People v. McCoy, 25 Cal.4th 1111 (2001) (describes target/nontarget distinction and NPC doctrine principles)
- People v. Ceja, 4 Cal.4th 1134 (1993) (elements and instruction framework for lying‑in‑wait murder)
- People v. Stanley, 10 Cal.4th 764 (1995) (lying‑in‑wait is an aggravated, first‑degree form of murder based on objective conduct)
- People v. Boyette, 29 Cal.4th 381 (2002) (discusses functional equivalence of lying‑in‑wait elements to premeditation)
- People v. Sandoval, 62 Cal.4th 394 (2015) (recognizes lying‑in‑wait murder may warrant the most severe penalties when committed with intent to kill)