People v. GonzalezPeople v. Gonzalez
What we conclude is that the special circumstance finding here indeed renders the trial court‘s error harmless. The prejudice arising from the failure to instruct on lesser included offenses and defenses creates a specific kind of risk —— that the jury, faced with an all-or-nothing choice between first degree murder or acquittal, convicted defendants of first degree felony murder even though the prosecution failed to satisfy its burden. Such an error is harmless if defendants cannot demonstrate a reasonable probability that the jury would have —— without the error —— reached a different result. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1132.) A jury‘s other findings, such as the resolution of a felony-murder special-circumstance allegation, may render the error harmless by resolving factual issues such as the truth of a felony-murder charge against the defendant. (See, e.g., People v. Castaneda (2011) 51 Cal.4th 1292, 1327-1329.) Defendants contend, however, that the jury‘s decision to convict on first degree felony murder in this case all but compelled the jury to find true the robbery-murder special circumstance because of the jury‘s purported desire for logical consistency —— thereby preventing us from holding the error harmless. They fail to take sufficient account of the fact that when the jury here found true the robbery-murder special circumstance, it necessarily made additional findings beyond those necessary for
I.
On October 6, 2009, Victor Rosales died from a single gunshot wound to the chest. Defendant Gonzalez allegedly shot Rosales as part of a robbery that Gonzalez planned and attempted to perpetrate with the assistance of defendants Estrada and Garcia. In an amended information, the prosecution jointly charged defendants Gonzalez, Estrada, and Garcia for the killing of Rosales. What the information alleged in count one is that defendants murdered Rosales with malice aforethought, in violation of
On the day of the shooting, Alejandro Ruiz went to Rosales‘s house and picked him up. Ruiz told police officers that he drove Rosales to meet with defendant Estrada for lunch. When Ruiz and Rosales arrived at the meeting place, Ruiz saw Estrada accompanied by two Hispanic males walking towards the car. Ruiz stated that Estrada pointed at Rosales and that one of the males walked up to the passenger door, produced a handgun, and shot Rosales. The shooter then walked around the car to the driver‘s side and attempted to pull Ruiz out of the vehicle. Ruiz hit the accelerator and drove away, back to Rosales‘s house.
Anthony Stephen Kalac was granted use immunity and testified against defendants. Kаlac testified that on the day of the shooting, he had done multiple hits of heroin and then went to defendant Garcia‘s house, where he did more heroin. Garcia, Kalac, and Garcia‘s girlfriend, Jennifer, then went to a hotel room at the Crystal Inn where they met defendants Estrada and Gonzalez. At the hotel room, Garcia suggested that they smoke crystal methamphetamine, but Gonzalez stated that they had no drugs in the room. In the ensuing discussions on where to obtain drugs, Estrada told Garcia and Gonzalez that she knew a person, Rosales, who they could “come up on” for drugs, which Kalac understood meant “to rob.” According to Kalac, Estrada said that Rosales was a drug dealing former boyfriend who had been “physical” with her and who had previously given her a black eye. Kalac observed that Gonzalez, who had been sleeping with Estrada, became “agitated” when Estrada talked about the prior physical abuse. Kalac had $35 on him that he gave to Estrada in exchange for a promise of heroin from the robbery.
Kalac then heard Estrada call Rosales to order $150 of methamphetamine and $50 of heroin. Estrada told Rosales to meet at the laundromat across the street
Kalac and Jennifer hеlped load bags into Estrada‘s black Cadillac so that she could move to the American Inn, a hotel a few minutes down the street. Once at the American Inn, Estrada and Jennifer left Kalac in the room, after which Kalac decided to go home. While walking home, Kalac saw Gonzalez and Garcia, who told Kalac that “shit went bad.”
Later on the day of the shooting, police officers arrested Estrada and Gonzalez at Estrada‘s house. Police found no weapons on Gonzalez or Estrada. Gonzalez‘s, but not Estrada‘s, hands tested positive for gunshot residue. Police arrested Garcia on December 17, 2009, at his house. Garcia attempted to run away, but police apprehended him.
Kalac later testified that he never saw a gun in the room at the Crystal Inn or after the shooting of Rosales. Stefanie San Angelo, Kalac‘s former girlfriend, heard about the shooting third-hand and told police that Garcia or Gonzalez gave Kalac the gun used in the shooting when they ran into each other on the street. San Angelo talked to Kalac after speaking with the police. Kalac told her that he had gone to buy drugs with Garcia “and there was another guy and female there. They intended to jack somebody. It was either the girl‘s boyfriend, ex-boyfriend. . . . They contacted him. He came out. They went down to meet with him. [Kalac] stayed in the room. . . . He [the victim] wasn‘t giving it up. He either tried to run away or drive away. They shot at him, hit him, and that was it.”
Estrada and Garcia did not testify during the defense‘s case, but Gonzalez testified in his own defense. Gonzalez confirmed that he was with Estrada, Kalac, Garcia, and Jennifer at the Crystal Inn on the day of the shooting. Yet instead of planning to rob Rosales, Gonzalez testified that he asked Estrada to call Rosales so that they could purchase crystal methamphetamine. Estrada called Rosales to
Estrada asked Gonzalez to meet Rosales because Estrada had to pack up and move to a new hotel after the Crystal Inn hotel manager told them to leave. Gonzalez left the hotel, followed by Garcia, to meet Rosales at the laundromat across Prairie Avenue.
After waiting outside the laundromat for 20 to 30 minutes, Gonzalez noticed Rosales sitting in the passenger seat of a car. Rosales was “mad-dogging” Gonzalez, that is, looking at Gonzalez in an aggressive manner. Gonzalez walked over and said, “What‘s up, Victor?” Rosales did not respond, and Gonzalez repeated his greeting. When Rosales did not respond a second time, Gonzalez asked, “Do you want me to get Erica?” Rosales pointed a handgun at Gonzalez. Gonzalez testified that, out of fear for his life, he grabbed the gun from Rosales. The gun ended up in Gonzalez‘s right hand. Rosales tried to retrieve the gun by grabbing Gonzalez‘s right wrist with both hands. As Gonzalez pulled away and turned his body, the gun went off. Gonzalez testified that he did not intentionally pull the trigger or try to kill Rosales.
Gonzalez then ran away and found Garcia. Walking along Prairie Avenue, Gonzalez and Garcia subsequently ran into Kalac. Gonzalez testified that he gave Kalac the gun, but did not tell Kalac to dispose of it.
The trial court instructed the jury on first degree felony murder based on robbery. The trial court did not instruct the jury on any other theory of murder, such as murder with malice aforethought, lesser included offenses of murder with malice aforethought, or defenses to murder with malice aforethought. The jury found defendants guilty of count one for first degree murder based on the felony-
The jury acquitted Gonzalez of count two for shooting at an occupied vehicle. As to both counts, the jury found not true the allegation that Gonzalez personally and intentionally discharged a firearm, causing Rosales great bodily injury or death. Because the jury found the rоbbery-murder special-circumstance allegation to be true as to each defendant, the trial court sentenced defendants to life imprisonment without the possibility of parole.
Defendants appealed their convictions on a number of grounds. As relevant here, defendants contended that the trial court erred by failing to instruct the jury on murder with malice aforethought, its lesser included offenses, and its defenses. Defendants claimed they were entitled to instructions on the lesser included offenses of second degree malice murder, voluntary manslaughter, and involuntary manslaughter, as well as the defenses of self-defense and accident. The Court of Appeal found any such error harmless under the standard in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Specifically, the Court of Appeal held that because the jury convicted defendants of first degree murder based on a robbery-felony-murder theory and found a robbery-murder special-circumstance allegation to be true, “it is not reasonably probable that appellants would have obtained a more favorable outcome had the jury been instructed on the lesser included offenses of murder.” The Court of Appeal expressly disagreed with People v. Campbell (2015) 233 Cal.App.4th 148 (Campbell), which held that a jury‘s guilty verdict on felony murder and true finding on a robbery-murder special-circumstance allegation do not render the failure to instruct on lesser included offenses of murder with malice aforethought harmless under Watson. (Campbell, at p. 174.)
II.
Whether an error proves harmless or not depends on the kind of error at issue. In particular, it depends on whether the error constitutes a lapse under the federal Constitution or state law, and whether it is structural in nature. We evaluate nonstructural state law error under the harmlessness standard set forth in Watson, supra, 46 Cal.2d at pp. 836-837. That standard requires us to evaluate whether the defendant has demonstrated that it is ” ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Id. at p. 837; People v. Hernandez (2011) 51 Cal.4th 733, 746 [holding that it is “the defendant‘s burden under Watson . . . to establish a reasonable probability that error affected the trial‘s result“].) In contrast, we evaluate the harmlessness of violations of the federal Constitution under the standard set forth in Chapman v. California (1967) 386 U.S. 18, which requires reversal unless the error is harmless “beyond a reasonable doubt.” (Id. at p. 24.) Whether a violation of state law or federal constitutional law, structural error results in per se reversal. (See People v. Anzalone (2013) 56 Cal.4th 545, 553 [” ’ “[U]nder the California constitutional harmless-error provision some errors . . . are not susceptible to the ‘ordinary’ or ‘genеrally applicable’ harmless-error analysis — i.e., the Watson ‘reasonably probable’ standard — and may require reversal of the judgment notwithstanding the strength of the evidence contained in the record in a particular case.” ’ “]; Arizona v. Fulminante (1991) 499 U.S. 279, 306-310 [holding that structural defects in a trial proceeding are per
The failure to instruct on lesser included offenses supported by substantial evidence was state law error. Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-156 (Breverman); People v. Shockley (2013) 58 Cal.4th 400, 403 [“A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.’ “].) That duty exists because of the right under the California Constitution ” ‘to have the jury determine every material issue presented by the evidence’ ” —— and the court‘s duty persists irrespective of whether the parties request such an instruction. (Breverman, at p. 153, quoting People v. Modesto (1963) 59 Cal.2d 722, 730; see also Breverman, at p. 155 [stating that the trial court has a sua sponte duty to act because such a duty helps prevent error arising from the ” ‘strategy, ignorance, or mistakes’ of either party“].) Our cases emphasize that the lesser included offense requirement protects the jury‘s ” ‘truth-ascertainment function.’ ” (Ibid., quoting People v. Barton (1995) 12 Cal.4th 186, 196.) The jury‘s exposure to “the full range of possible verdicts — not limited by the strategy, ignorance, or mistake of the parties . . . ensure[s] that the verdict is no harsher or more lenient than the evidence merits.” (People v. Wickersham (1982) 32 Cal.3d 307, 324; People v. Smith (2013) 57 Cal.4th 232, 239–240 [” ‘[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.’ “]; see also People v. Eid (2014) 59 Cal.4th 650, 657 [“A jury instructed on only the charged offense might be tempted to convict the defendant
Whether a trial court commits error by omitting an instruction on a lesser included offense depends not only on whether the evidence supports the possible commission of an alternative crime, but whether that alternative crime constitutes a “lesser included offense” as we have defined it. We have established two tests for whether a crime is a lesser included offense of a greater offense: the elements test and the accusatory pleading test. (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) Either of these tests triggers the trial court‘s duty to instruct on lesser included offenses. Under the elements test, one offense is another‘s “lesser included” counterpart if all the elements of the lesser offense are also elements of the greater offense. (Id. at p. 1227.) Under the accusatory pleading test, a crime is another‘s “lesser included” offense if all of the elements of the lesser offense are also found in the facts alleged to support the greater offense in the accusatory pleading. (Id. at p. 1228 [discussing circumstances where, because the accusatory pleading alleged that defendant was a felon as part of a charge of “carrying a concealed firearm,” a lesser included offense of that alleged crime would be “being a felon in possession of a firearm“].)
In this case, defendants were accused of committing murder with malice aforethought. This accusation triggered the duty to instruct on lesser included offenses of that charge if there was substantial evidence that defendants committed the lesser, but not the greater offense, supporting such instructions. Murder with malice aforethought results in a second degree murder conviction — assuming all other elements of the offense are proven — where the defendant had an intent to kill or acted with conscious disregard that the natural and probable consequences of the act or actions were dangerous to human life. (People v. Elmore, supra, 59 Cal.4th at pp. 132-133.) If the defendant instead had an intent to kill and the killing was also deliberate and premeditated, the jury could convict the defendant of first degree murder. (People v. Saille (1991) 54 Cal.3d 1103, 1114-1115; People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-823.) Lesser included оffenses of first degree premeditated murder include second degree murder, voluntary manslaughter, and involuntary manslaughter.
Like the Court of Appeal, we assume without deciding that substantial evidence could have supported a jury finding that defendants committed a lesser included offense of murder with malice aforethought rather than first degree murder. Specifically, we assume that defendants correctly contend that substantial evidence supported instructions of second degree malice murder, voluntary manslaughter, and involuntary manslaughter. In light of the assumption that substantial evidence supported these instructions, the murder accusation triggered the duty to instruct on lesser included offenses of murder with malice aforethought even though, at the prosecution‘s request, the trial court instructed the jury on only felony murder.2 (Banks I, supra, 59 Cal.4th at p. 1160 [“[S]econd degree murder was plainly a lesser included offense of felony murder as charged in count 8. Count 8 charged defendant with willfully killing [the victim] with malice aforethought. . . . [I]t is evident that second degree murder was a lesser included offense of felony murder as charged in count 8, which alleged not merely that defendant killed in the course of a robbery but that he did so willfully and
According to Gonzalez, this error violated federal constitutional law. Although we have long recognized the duty to instruct on lesser included offenses under California law, neither we nor the United States Supreme Court recognizes a similar duty to instruct on lesser included offenses under federal constitutional law —— at least in noncapital cases. (Breverman, supra, 19 Cal.4th at pp. 168-169; see Schad v. Arizona (1991) 501 U.S. 624, 645-647 [in capital cases, requiring at least a single noncapital third option between the capital charge and acquittal].)
Gonzalez also contends that the trial court committed federal constitutional error by failing to instruct explicitly on murder with malice aforethought. To the extent this argument claims that the trial court should have instructed on second degree murder, Gonzalez‘s argument is simply seeking an instruction on a lesser included offense, which is state law error. (See Banks I, supra, 59 Cal.4th at p. 1160.) To the extent Gonzalez contends it was federal constitutional error not to instruct on an alternative theory of first degree murder, namely, first degree premeditated murder, Gonzalez only cites cases involving the failure to instruct on the elements of an offense. (See United States v. Gaudin (1995) 515 U.S. 506, 509-510, 522-523; People v. Merritt (2017) 2 Cal.5th 819, 824.) Such a violation is categorically different from a failure to instruct on alternative theories of first degree murder. When a court fails to instruct the jury on an element of an offense, the error violates the federal Constitution because a jury must find the defendant guilty of every element of the crime of conviction beyond a reasonable doubt. By contrast, the trial court‘s failure to instruct the jury on an alternative theory that would have allowed it to convict defendants of the same crime does not deprive defendants of their right to a jury determination of the elements of the crime of conviction, and is not federal constitutional error.
Gonzalez also argues that the trial court committed a structural error when it omitted instructions on murder with malice aforethought, its lesser included offenses, and its defenses. Here too Gonzalez fails to persuade. The trial court‘s failure to instruct on lesser included offenses and defenses of murder with malice aforethought is subject to harmless error review. (See Breverman, supra, 19 Cal.4th at p. 176; Salas, supra, 37 Cal.4th at p. 984.) And as to the failure to instruct on alternative theoriеs of first degree murder, Gonzalez fails to present a cogent theory of what prejudice arises from the trial court‘s omission of such
III.
We now turn to whether the jury‘s robbery-murder special-circumstance finding renders harmless the trial court‘s error when it failed to instruct on murder with malice aforethought, lesser included offenses of murder with malice aforethought, and defenses to murder with malice aforethought. The prejudice arising from the failure to give such instructions is the risk that the jury ignored its instructions and convicted the defendant of an offense — in this case, robbery-based felony murder — for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, tempted to convict of a greater offense rather than acquit. (See Eid, supra, 59 Cal.4th at p. 657 [“A jury instructed on only the charged offense might be tempted to convict the defendant ’ “of a greater offense than that established by the evidence” ’ rather than acquit the defendant altogether.“].) Still, our case law establishes that a true felony-murder special-circumstance finding can render such error hаrmless. As we have previously observed, a true special circumstance finding requires a jury to find that the killing occurred during the commission of a felony. Accordingly, such a finding necessarily demonstrates the jury‘s determination that the defendant committed felony murder rather than a lesser form of homicide. (See People v. Lewis (2001) 25 Cal.4th 610, 646 (Lewis) [“Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.“]; People v. Castaneda, supra, 51 Cal.4th at pp. 1327-1329; People v. Elliot (2005) 37 Cal.4th 453, 475-476; People v. Horning (2004) 34 Cal.4th 871, 906; People v. Koontz (2002) 27 Cal.4th 1041, 1085–1087; People v. Earp (1999) 20 Cal.4th 826, 885-886.)4 Such a finding therefore renders harmless the failure to instruct on lesser included offenses of murder with malice aforethought and the associated prejudice created by an all-or-nothing choice.
Nonetheless, defendants believe that Earp and the rest of our prior cases are distinguishable because the trial court instructed the jury on premeditated first degree murder and felony murder in those cases, whereas here, as was the case in Campbell, the trial court instructed the jury on only felony murder. The Campbell court held that this distinction makes a difference because, in our prior cases, the jury had the option of finding the defendant guilty of first degree murder based on premeditation and deliberation without also finding a special circumstance true. (Campbell, supra, 233 Cal.App.4th at pp. 167-168.) This option for the jury to not find the special circumstance true gave the Campbell court “confidence” in the special circumstance finding. (Ibid.) In contrast, where the trial court instructs only on felony murder, the Campbell court held that there is no such confidence because “the decisiоn to convict the defendant of [felony] murder essentially
Defendants’ arguments fail to persuade. Because we are addressing state law error, defendants must show that a different result was reasonably probable under the Watson standard. (See Watson, supra, 46 Cal.2d at pp. 836-837; People v. Blackburn, supra, 61 Cal.4th at p. 1132.) The robbery-murder special-circumstance finding here demonstrates that a different result was not reasonably probable. Despite defendants’ contentions, we see little reason to conclude that the special circumstance finding was “essentially compelled” by the felony-murder conviction because of some desire for logical consistency. The trial court specifically instructed the jury to take the questions of felony murder and the special circumstance separately, and the speciаl circumstance finding required additional elements beyond those necessary to convict of felony murder. Moreover, the findings on the additional special circumstance elements are incongruous with defendants’ contention that they committed a lesser crime than felony murder. In light of these additional findings and the presumption that juries understand and follow instructions, the special circumstance finding prevents defendants from establishing a reasonable probability that the jury would have reached a different result absent the trial court‘s failure to instruct on lesser included offenses of, and defenses to, murder with malice aforethought.
Defendants maintain that the special circumstance finding cannot render the trial court‘s error harmless, because the jury could not have found the special circumstance false without creating a logical inconsistency with the felony-murder conviction. We are unpersuaded by this argument. The special circumstance instructions here required findings above and beyond what was necessary for the felony-murder conviction. The jury found that the two aiders and abettors who did not shoot Rosales, Estrada and Garcia, either intended to kill or were “major participants” in the crime who acted with “reckless indifference to human life.” None of these findings were elements of felony murder. Thus, to the extent the jury believed the prosecution did not meet its burden to demonstrate that the aiders and abettors committed or attempted to commit robbery, it could have found the robbery-murder special-circumstance allegation false as to the aiders and abettors without giving the appearance that it was delivering an inconsistent verdict. This case is thus not meaningfully distinguishable from our prior decisions. (See, e.g., People v. Horning, supra, 34 Cal.4th at p. 906.) Just as in a situation where the jury receives instructions on premeditated first degree murder and robbery-based felony murder, the jury here could have convicted defendants of first degree
Nor was the special circumstance aider and abettor finding a foregone conclusion compelled by the record. Indeed, arguments about the contents of the record cut against defendants. The jury would have been unlikely to make the findings regarding aider and abettor intеnt — which were unnecessary for the felony-murder conviction — if the jury believed defendants committed a lesser crime than robbery-based felony murder. The special circumstance instructions required the jury to find that aiders and abettors to the felony murder — in this case, Estrada and Garcia — either intended to kill or were “major participants” in the crime who acted with “reckless indifference to human life.” According to the trial court‘s instructions, the jury had to base any conclusion that Estrada and Garcia had exhibited reckless indifference on a finding that the defendants “knowingly engage[d] in criminal activities” that they knew involved “a grave risk of death.” (People v. Estrada (1995) 11 Cal.4th 568, 577, italics added.) We have held this to mean that “[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” (People v. Banks (2015) 61 Cal.4th 788, 801 (Banks II).)
This particular conclusion — involving a finding that defendants harbored the intent necessary for aider and abettor liability — is based on the evidence presented at trial. It is at the very least incongruous with defendants’ contention that defendants committed a crime of lesser magnitude than robbery-based felony murder. The primary dispute at trial was whether defendants sought to rob Rosales or whether they merely sought to purchase drugs or steal from Rosales. Kalac testified that defendants planned to “come up on” Rosales and another witness, San Angelo, told officers that defendants had planned to “jack
Similarly, although defendants argued in closing at trial that they merely intended to steal drugs from Rosales without using force or fear, the jury appears to have rejected this position. If the jury accepted the position that defendants did not intend to use force or fear, it could not have found under the factual circumstances of this case that non-perpetrators Garcia and Estrada intended to kill Rosales by agreeing to help with such a theft. Mоreover, there is little evidence to support the contention that Garcia and Estrada knew that committing theft, which does not involve the use of force or fear, carried a grave risk of death. Indeed, there is no evidence that defendants knew that Rosales had a gun or some other means of resisting a theft that would not also require the perpetrator to use “force or fear” to obtain the drugs. There was certainly a possibility that, after stealing Rosales‘s drugs, Rosales might have had a gun and might have shot one of the defendants as defendants ran away. But nothing in the record supports the contention that defendants had that possibility in mind or knew that it amounted to a “grave risk.” (Cf. Banks II, supra, 61 Cal.4th at p. 807 [finding insufficient evidence of knowledge of a grave risk of death partly because the defendant did
These intent findings also show that defendants are incorrect that the lack of jury instructions on the elements of theft exacerbated their prejudice. A failure to instruct on theft is not error where the jury is charged, as here, with robbery-based felony murder but not robbery. (People v. Valdez (2004) 32 Cal.4th 73, 110-111.) Moreover, we note that defense counsel specifically argued that the force or fear element of robbery had not been established at closing argument, rendering the crime a mere theft, which mitigates any potential prejudice arising from the nonerroneous failure to instruct on theft. And to the extent that the lack of such an instruction can constitute error or contribute to prejudice, the error here is harmless because the aider and abettor intent findings make a theft finding unlikely on the facts of this case.
As a general matter, theft crimes and low-volume drug deals are not the kinds of crimes ordinarily understood to involve a grave risk of death. (People v. Gomez (2008) 43 Cal.4th 249, 254 [“Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present“]; People v. Macafee (1980) 109 Cal.App.3d 808, 812 [holding, for purposes of a diversion statute, that a drug offense does not involve “a crime of violence or threatened violence unless the drug offense played some part in the commission of [a] violent crime“].) We find no facts in this case suggesting that a mere theft or the purchase of a relatively small amount of drugs for personal use would give rise to a grave risk of death. Whether or not a jury might reasonably conclude that a theft or drug deal may involve the defendants’ subjective appreciation of a grave risk of death in other specific circumstances, we base our conclusion about the implications of the jury‘s grave risk of death determination on the particular facts of this case.
The weight we give the special circumstance finding is supported by the presumption that jurors understand and follow trial court instructions. (See Smith, supra, 40 Cal.4th at pp. 517-18.) We consider this a ” ‘crucial assumption’ ” ——
The jury here appears not to have facеd any heightened risk of disregarding the special circumstance instructions. Defendants point to the jurors’ potential desire to keep their findings logically consistent, perhaps in order to conceal the fact that they previously disobeyed instructions. But if the jury convicted defendants of robbery-based felony murder even though it believed defendants committed a lesser crime, it is unclear why logical consistency would motivate a jury to make additional findings against defendants by disobeying its instructions a second time in finding the special circumstance true. Perhaps such behavior is not impossible to envision, but on the facts of this case we cannot conclude that such a scenario has attached to it a reasonable probability. (People v. Mena (2012) 54 Cal.4th 146, 162 [holding that prejudice under Watson ” ‘must necessarily be based upon reasonable probabilities rather than upon mere possibilities’ “].) Indeed, the special circumstance instructions required findings beyond those
Defendants also raise an argument that the firearm-related jury findings show the unreliability of the special circumstance finding. That is not the case. The jury found untrue the allegation that a principal was armed, along with the allegation that Gonzalez personally and intentionally discharged a firearm, and it acquitted Gonzalez of count two for shooting at an occupied motor vehicle. These findings are not irreconcilable with the jury‘s special circumstance finding, and do not affect the outcome. Even if the jury was not persuaded that Gonzalez was armed, a perpetrator need not be armed with a weapon to create the force or fear necessary for robbery. The force sufficient to establish robbery exists even if there is merely a “quantum [of force] more than which is needed . . . to take the property from the person of the victim.” (People v. Wright (1996) 52 Cal.App.4th 203, 210; People v. Mungia (1991) 234 Cal.App.3d 1703, 1709 [holding that evidence of shoving was sufficient for a jury to conclude that a robbery occurred]; People v. Roberts (1976) 57 Cal.App.3d 782, 787 [holding that the force necessary to grab a purse and break its strap could support a robbery conviction].) Moreover, the jury could have concluded Gonzalez was not armed and still found defendants had knowledge of a “grave risk of death.” The jury may have believed, for example, that the planned commission of a violent crime such as the robbery of a drug dealer who had been physically violent towards Estrada in the past carried a grave risk of death. The prosecution‘s closing argument on why the jury should find a grave risk of death was based on a similar theory — that the robbery of the drug dealer involved a grave risk of death.
Even if one believed the “grave risk” finding and the conclusion that Gonzalez was unarmed conflict in an irreconcilable manner, the outcome would remain unchanged. There is no compelling reason to think that a grave risk of death would arise from a mere drug deal or theft — as opposed to a robbery — in this case. If the jury understood the circumstances in this case to involve a conventional drug deal or theft of drugs, it is unlikely the jury would have made the additional grave risk of death finding. Such a finding is far more consistent with a scenario involving commission of a robbery.
Where a jury‘s findings are irreconcilable, we normally attribute such tensions to compromise, lenity, or mistake, and give effect to all of the jury‘s findings. (People v. Avila (2006) 38 Cal.4th 491, 600 [” ‘[I]f an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.’ “]; see also
In contrast, the special circumstance finding constitutes the jury‘s determination — beyond a reasonable doubt — that a robbery murdеr occurred, and that it involved a grave risk of death. What the separate grave risk of death finding demonstrates — irrespective of the precise factual underpinnings directly supporting the jury‘s special circumstance determination — is that the jury could have found the special circumstance false, without risking apparent logical inconsistency with the felony-murder conviction.
Finally, the firearm-related findings are consistent with the conclusion that the jury weighed relatively carefully the evidence at trial. Ruiz told police that one of the male defendants was armed with a gun and shot Rosales without provocation after Estrada pointed at Rosales. Kalac testified that he never saw a
The failure to instruct on lesser included offenses of —— or defenses to —— murder with malice aforethought is error that may be prejudicial. But the error is not structural, and a special circumstance finding may provide a means of gaining insight into what the jury would have done in the absence of the error. In this case, the jury‘s special circumstance determination required findings beyond those necessary for a felony-murder conviction, undermining defendants’ claim that the jury would merely seek to avoid the appearance of an inconsistent verdict. Moreover, these additional findings highlight a separate jury determination —— one most consistent with the conclusion that the jury rejected non-robbery theories of what happened. These fact-specific elements of the special circumstance finding, along with the presumption that juries tend to follow instructions and the fact that the trial court clearly instructed the jury, demonstrates the harmlessness of the error. The jury‘s true finding on the robbery-murder special circumstance is thus most consistent with the inference that —— even without the asserted error —— the jury would have almost certainly found defendants guilty of felony murder. Consequently, we find no reasonable probability the jury would have reached an outcome more favorable to defendants. Because of this, we affirm the Court of Appeal‘s decision.
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
ZELON, J.*
* Associate Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to
Today‘s opinion holds that the trial court‘s failure to instruct the jury on murder with malice aforethought and its lesser included offenses and related defenses was harmless. I respectfully disagree.
The instructional error here created “a specific kind of risk — that the jury, faced with an all-or-nothing choice between first degree murder or acquittal, convicted defendants of first degree felony murder even though the prosecution failed to satisfy its burden.” (Maj. opn., ante, at p. 2.) The record contains ample evidence that could have led the jury to find malice murder or a lesser included offense rather than first degree felony murder.
As the court says, “The primary dispute at trial was whether defendants sought to rob [Victor] Rosales or whether they merely sought to purchase drugs or steal from Rosales.” (Maj. opn., ante, at p. 19.) In order to find defendants guilty of robbery-based felony murder, the jury had to find that defendants had an intent to rob. The prosecution‘s main evidence of defendants’ intent to rob was the testimony of Anthony Kalac, who was present at the Crystal Inn with defendants Jorge Gonzalez, Erica Estrada, and Alfonso Garcia on the day of the shooting.
According to Kalac, when he arrived at the Crystal Inn, he overheard Garcia suggest to Gonzalez that they smoke methamphetamine. Gonzalez replied that they didn‘t have “any,” which Kalac understood to mean they had no drugs in the room. Kalac said defendants then talked about “finding someone that they
On cross-examination, Kalac admitted that part of the conversation among Gonzalez, Estrada, and Garcia about where to obtain drugs had taken place in Spanish, a language he does not understand. Kalac testified that the only part of defendants’ conversation that was in English was about “[w]here they were meeting basically and how long.” Kalac further admitted that during his police interview, when Detective Lane said, “In reality you don‘t know what they were planning at the time,” Kalac agreed and said, “I don‘t know what they were doing.” Further, Detective Lane testified that during the interview, Kalac never used the phrase “come up on” in describing his recollection of defendants’ conversation at the Crystal Inn, and Detective Lane confirmed that the phrase did not appear in the interview transcript. The first time Kalac mentioned the phrase was at trial.
Kalac also did not comprehend the content of Estrada‘s phone conversation with Rosales, most of which was in Spanish. Kalac testified that the only parts of
Moreover, Kalac‘s trial testimony contradicted earlier statements he had made. Kalac testified that after Estrada made her phone call to Rosales, Garcia said he would act as a lookout “[f]or a robbery.” Defense counsel then pointed out that Kalac had been asked at the preliminary hearing, “Did [Garcia] say he was going to be a look-out to rob or did he say he was going to be a look-out for a drug transaction?” Kalac had replied, “The drug transaction.” At trial, Kalac admitted he had contradicted himself. When asked why his trial testimony was inconsistent with his prior testimony, he said, “I was confused. The lawyer was hitting me with questions left and right. I was basically confused, not listening.” Kalac also admitted he had contradicted himself during the preliminary hearing by testifying that he had seen Gonzalez and Garcia enter the laundromat, but then later testifying that he had not.
Finally, Kalac admitted that he had started smoking heroin early in the morning on the day of the shooting and that he was high on heroin from the time he arrived at the Crystal Inn through the aftermath of Rosales‘s death. In short, the prosecution‘s main witness had a number of credibility problems. There were amplе grounds for the jury to question his testimony, including his claim that defendants intended to rob Rosales.
Alejandro Ruiz, who went with Rosales to the drug transaction and witnessed the shooting, did not testify at trial. Ruiz‘s account was introduced only through Officer Vasquez‘s trial testimony, including his statement that when he and Rosales arrived at the meeting place, “Estrada pointed at Rosales and . . . one of the males walked up to the passenger door, produced a handgun, and shot Rosales.” (Maj. opn., ante, at p. 4.) Ruiz‘s statements were never subjected to cross-examination, and the jury had no reason to necessarily credit his version of events given his complicity in the drug transaction. Gonzalez, testifying in his own defense, said that he did not have a gun and that the shooting occurred accidentally after Rosales pulled out a gun and threatened Gonzalez.
The jury apparently had doubts about Ruiz‘s statements because it acquitted Gonzalez of the charge of shooting at an occupied vehicle and returned “not true” findings on every firearm-related allegation. If any of the defendants had been armed, the jury should have found true the allegation that “one of the principals was armed with a firearm in the commission of [the] crime.” But the jury did not — which suggests it may have had doubts about whether defendants went to meet Rosales with an intent to take the drugs by means of force or fear. There was no
In sum, there is more than substantial evidence from which the jury could have doubted that defendants intended to rob Rosales, a required element of robbery-based felony murder. The jury could have instead convicted defendants of malice murder or lesser included offenses had it been properly instructed. The instructional error presented the jury with a choice of finding either felony murder or no homicide offense at all — precisely the kind of all-or-nothing choice that our state Constitution and case law forbid. (Maj. opn., ante, at pp. 9–10.)
Today‘s opinion says we can have confidence in the felony-murder verdict because the jury‘s true finding on the robbery-murder special circumstance “necessarily demonstrates the jury‘s determination that the defendant[s] committed felony murder rather than a lesser form of homicide.” (Maj. opn, ante, at p. 14.) The special circumstance required the jury to make additional findings beyond the elements of felony murder — i.e., that “the defendant intended to commit robbery independent of the killing,” that “the commission of robbery was [not] merely part of or incidental to the commission of [the] murder,” and that “[t]he act causing the death and the robbery or attempted robbery were part of one continuous transaction.” If the jury harbored any doubts as to whether defendants committed felony murder, the court contends, the jury would have declined to make these additional findings. (Maj. opn., ante, at p. 23.)
Whatever force this logic might have in the abstract, it is unpersuasive in light of the evidence presented to the jury in this case. The prosecution‘s only theory was that the three defendants decided while at the Crystal Inn to ask Rosales to bring them drugs for purchase and then to rob him. Every piece of evidence the prosecution proffered was calculated to support its theory that Rosales was shot and killed in the course of a robbery. The jury ultimately found
The additional findings required by the robbery-murder special circumstance thus provide no independent confirmation of the jury‘s felony-murder verdict. Instead, the jury‘s “decision to convict the defendant[s] of [felony] murder essentially compel[led] them, even if they harbor[ed] doubt as to guilt of the underlying felony, to further find the [robbery-murder] special circumstance allegation true.” (People v. Campbell (2015) 233 Cal.App.4th 148, 168.) It does not matter that “[t]he special circumstance instructions required the jury to only address the special circumstance finding after convicting on felony murder” (maj. opn., ante, at p. 17) or that “the jury instructions clearly required the jury to consider the special circumstance allegation separately from the felony-murder conviction under a beyond a reasonable doubt standard” (id. at pp. 23–24). The jury could not have known what consequences would flow from its findings on the special circumstance allegations, since the jury was instructed not to “consider or discuss penalty or punishment in any way when deciding whether a special circumstance, or any other charge, has been proved.” Once the jury returned a guilty verdict on felony murder, a true finding on the robbery-murder special circumstance was a foregone conclusion.
But what are we to make of the jury‘s “not true” finding on the allegation that “one of the principals was armed with a firearm in the commission of [the] crime“? How is it possible that the jury believed both (1) that Estrada and Garcia (and, by extension, Gonzalez) engaged in criminal activity that they knew involved a grave risk of death, and (2) that none of them was armed with a firearm in the commission of the crime? Today‘s opinion suggests these findings are “not irreconcilable” because the jury could have believed that defendants used some means of creating force or fear other than a firearm. (Maj. opn., ante, at p. 24.) But no evidence or argument at trial supports this theory. The court also suggests the jury may have believed that defendants knew “the robbery of a drug dealer who had been physically violent towards Estrada in the past carried a grave risk of death.” (Maj. opn., ante, at pp. 24–25.) Yet the court cites no evidence in support of this theory either. It is true that the prosecution in closing argument pointed to
I agree that “[w]here a jury‘s findings are irreconcilable, we normally attribute such tensions to compromise, lenity, or mistake, and give effect to all of the jury‘s findings.” (Id. at p. 25.) In giving effect to all of the jury‘s findings, however, why should we conclude (1) that the aider and abettor special circumstance finding confirms the validity of the felony-murder verdict, and the firearm-related findings can be chalked up to compromise, lenity, or mistake, instead of (2) that the firearm-related findings call into question the felony-murder verdict, and the aider and abettor special circumstance finding can be chalked up to compromise, lenity, or mistake? There is no additional jury finding that tends to independently confirm one interpretation or the other. Even if the court were correct that the first interpretation is more plausible (and I am not persuaded it is), there would still be a reasonable probability that the second interpretation is what in fact occurred.
I would thus hold there is a reasonable probability that the jury would have reached an outcome more favorable to defendants if it had been instructed with malice murder and its lesser included offenses and related defenses, instead of being presented with an all-or-nothing choice between finding felony murder or no homicidе offense at all. The evidence at trial and the confusing — indeed, contradictory — jury findings do not give me confidence that felony murder was
LIU, J.
I CONCUR:
KRUGER, J.