THE PEOPLE, Plaintiff and Respondent, v. PERLA ISABEL GONZALEZ, Defendant and Appellant.
No. S189856
Supreme Court of California
July 5, 2012
54 Cal.4th 643
THE PEOPLE, Plaintiff and Respondent, v. PERLA ISABEL GONZALEZ, Defendant and Appellant.
Laura G. Schaefer, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Gil Gonzalez and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
CORRIGAN, J.—Defendant Perla Isabel Gonzalez (Perla) recruited her brother and her boyfriend to assault Roberto Canas-Fuentes (Canas).1 After Canas fended off a knife attack and gained the upper hand in the fight, Perla handed the boyfriend a loaded rifle. Canas wrested the rifle away and shot the boyfriend dead. The jury convicted Perla of the attempted premeditated and deliberate murder of Canas and, based on the provocative act doctrine, the first degree murder of her boyfriend.2
We recently held that similar circumstances could support a conviction of first degree murder if the defendant personally acted willfully, deliberately, and with premeditation during an attempted murder. (People v. Concha (2009) 47 Cal.4th 653, 658 (Concha).) Here, substantial evidence supports Perla‘s conviction for the murder of her boyfriend. As in Concha, the trial court erred in instructing the jury on the requirements for premeditated and deliberate first degree murder; however, we conclude the error was harmless beyond a reasonable doubt.
BACKGROUND
Joan Curiel and her husband, Canas, had a three-year-old daughter together. When they separated, Curiel moved into the residence of Ricardo Gonzalez (Ricardo). Ricardo is defendant Perla‘s brother. Curiel‘s two other children and her mother, Rosalba Osguera-Alvarez (Osguera), also moved into Ricardo‘s home. The relationship between Canas and Ricardo was volatile. The two men had argued several times on the telephone and had fought physically at least once. Canas and Curiel shared custody of their daughter, but Canas typically picked up the child away from Curiel‘s residence in order to avoid encountering Ricardo.
Canas worked as an emergency room technician. On the evening of May 21, 2005, Curiel called Canas, arranging to bring her mother to the hospital for treatment. After Osguera returned home, Curiel and Ricardo began arguing about whether Curiel had lied to him about “partying” with Canas while Ricardo was in Mexico. During the argument, Canas called and spoke
Later that evening, after Ricardo and Curiel had both returned home, several members of Ricardo‘s family gathered to discuss the altercation. In addition to Ricardo and Curiel, the group included Ricardo‘s mother and grandmother; his brother Jorge and Jorge‘s girlfriend; and his sister Perla and Perla‘s boyfriend, Fernando Morales. Perla, the defendant here, said that if anything happened to Ricardo, the family would “kick [Canas‘s] ass.” Meanwhile, Canas continued to call the house and argue with Ricardo. Finally, Jorge answered the telephone and agreed to fight Canas at a nearby street corner. Jorge waited at the corner with his girlfriend, Perla, and Morales, the ultimate decedent. Morales had brought a BB gun and shot it out the car window to pass the time. They waited for 15 or 20 minutes then left when Canas did not arrive.
The next morning, Perla picked up Jorge at his house and told him they were going back to the street corner to “beat up” Canas. Curiel had told Perla that Canas would be picking up his daughter at the corner, and Perla wanted to intercept him there. Jorge brought a baseball bat, with which he planned to break the windows of Canas‘s car. When Jorge got in Perla‘s car, he saw a light brown rifle lying in the backseat area. Perla then drove back to her house to pick up her boyfriend, Morales. Jorge told Morales about the plan to assault Canas, and Morales agreed to help if Canas got the upper hand. After a brief stop at Ricardo‘s house to confirm that Canas had not yet picked up his daughter, the group drove to the intersection where they had waited for Canas the night before. They eventually decided to leave, but Perla‘s car would not start. Jorge ran back to Ricardo‘s house for help, leaving Perla and Morales waiting at the car. On the way, Jorge passed Osguera walking Canas‘s daughter to the corner to meet her father. Curiel‘s 13-year-old daughter walked behind them. When she joined them at the corner, she saw Perla and Morales standing next to a car with the hood raised. Perla approached Osguera and told her to leave, but the grandmother refused.
After about 10 minutes, Canas arrived. He noticed Perla and Morales standing next to a car with the hood up. He had never seen them before and
Canas fought back. Morales then pulled a knife with a three- to four-inch blade from his waistband and lunged at Canas, stabbing him in the face. Perla stood about 10 feet away, near the rear of her car, watching the fight. When Morales advanced on him again, Canas ducked and grabbed Morales‘s legs from under him, hurling him onto his back. Morales quickly rose and ran toward Perla‘s car. Canas saw Perla reach inside the car and grab a rifle. She met Morales near the back of the car, “cocked” the rifle by pulling back the hammer, then handed it to Morales.3
Seeing this, Canas ran at Morales, who had his back turned. During the ensuing struggle, the rifle discharged several times. Canas was hit in the hand, bicep, and thigh but managed to gain control of the rifle. Perla ran away.4 Morales also turned to run. Afraid for his life, Canas fired the rifle in Morales‘s direction at least three times, until it ran out of ammunition. Morales fell to the sidewalk. Canas went to Morales and, after ensuring he was unarmed, checked his pulse. Canas still did not know his assailants or why they had attacked him.
Curiel drove to the scene and found Canas sitting on the sidewalk near Morales‘s body. When she asked what had happened, a shaken Canas yelled, “He shot me, so I shot him back.” Curiel began driving home but soon returned to the scene with Jorge and Perla. Perla screamed at Canas to help her carry Morales into the car. He refused because Morales had “just tried to kill [him].” Perla and Jorge pulled Morales into the car, and Curiel drove them to the hospital. Morales died there from gunshot wounds to the chest and abdomen.
Canas remained at the scene. When police arrived, they recovered the rifle from him. Several expended shell casings and a knife were found in the street. Perla‘s car was still at the location. Its rear license plate was obscured
Perla was charged with the attempted murder of Canas and the murder of Morales. (
The judgment was affirmed. The Court of Appeal unanimously concluded, inter alia, that Perla‘s conviction of the first degree murder of Morales was supported by substantial evidence. The panel also unanimously determined that the jury had been erroneously instructed. The jury was not told that to convict Perla of first degree murder under the provocative act doctrine it had to find that she personally premeditated and deliberated the attempted murder of Canas. (See Concha, supra, 47 Cal.4th at p. 666.) The court disagreed about the effect of the error. The majority held the error harmless while the dissenting justice found it prejudicial.
We granted review limited to the issues of whether sufficient evidence supports the conviction for first degree murder and whether the instructional error was harmless beyond a reasonable doubt. The evidentiary sufficiency question turns on the provocative act doctrine and its analytical place in the law of homicide, which we discuss in some detail. We conclude the evidence here was sufficient and, although the jury was given a potentially misleading instruction on this topic, the error was harmless. We therefore affirm the judgment of the Court of Appeal.
I. Substantial Evidence Supports the Murder Conviction
In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Cervantes, supra, 26 Cal.4th at p. 866; People v. Caldwell (1984) 36 Cal.3d 210, 217.)
It will be helpful in resolving this matter to bear in mind several general principles in the law of homicide. A conviction for murder requires the commission of an act that causes death, done with the mental state of malice aforethought (malice). (
The law recognizes two degrees of murder. The degrees are distinguished by the mental state with which the killing is done. A person who kills unlawfully with implied malice is guilty of second degree murder. (Knoller, supra, 41 Cal.4th at pp. 151–152.) A person who kills unlawfully and intentionally is guilty of first degree murder if the intent to kill is formed after premeditation and deliberation. (
While implied malice murder does not require an intent to kill, attempted murder does require a specific intent to kill. (People v. Guerra (1985) 40 Cal.3d 377, 386.)8 The crime of attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation. (People v. Smith (2005) 37 Cal.4th 733, 740.) In general, attempted murder is punishable by imprisonment for a term of five, seven, or nine years. (
Under the felony-murder doctrine, when the defendant or an accomplice kills someone during the commission, or attempted commission, of an inherently dangerous felony, the defendant is liable for either first or second degree murder, depending on the felony committed. If the felony is listed in section 189, the murder is of the first degree; if not, the murder is of the second degree. (
When someone other than the defendant or an accomplice kills during the commission or attempted commission of a crime, the defendant is not liable under felony-murder principles but may nevertheless be prosecuted for murder under the provocative act doctrine. The provocative act doctrine is to be distinguished from the felony-murder rule. “A provocative act murder case necessarily involves at least three people—in our case, the perpetrator of the underlying offense, an accomplice, and a victim of their crime. [Citation.]” (People v. Briscoe (2001) 92 Cal.App.4th 568, 581.) A variation on the law of transferred intent, the provocative act doctrine holds the perpetrator of a violent crime vicariously liable for the killing of an accomplice by a third party, usually the intended victim or a police officer. (Ibid.; see People v. Gilbert (1965) 63 Cal.2d 690, 705 (Gilbert).) Under the felony-murder rule, if an accomplice is killed by a crime victim and not by the defendant, the defendant cannot be
A murder conviction under the provocative act doctrine thus requires proof that the defendant personally harbored the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused an unlawful killing. (Concha, supra, 47 Cal.4th at pp. 660-661; People v. Briscoe, supra, 92 Cal.App.4th at p. 582.) A provocative act is one that goes beyond what is necessary to accomplish an underlying crime and is dangerous to human life because it is highly probable to provoke a deadly response. (CALCRIM No. 560; see People v. Lima (2004) 118 Cal.App.4th 259, 265.) Although the doctrine has often been invoked in cases where the defendant initiates or participates in a gun battle (Cervantes, supra, 26 Cal.4th at p. 867), it is not limited to this factual scenario. (People v. Lima, at p. 266; see Concha, at p. 658 [knife attack].) Malice will be implied if the defendant commits a provocative act knowing that this conduct endangers human life and acts with conscious disregard of the danger. (People v. Roberts (1992) 2 Cal.4th 271, 317; Gilbert, supra, 63 Cal.2d at p. 704.)
An important question in a provocative act case is whether the act proximately caused an unlawful death. “[T]he defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. [Citation.] ‘In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant‘s liability will depend on whether it can be demonstrated that [the defendant‘s] own conduct proximately caused the victim‘s death. . . .’ [Citation.] ‘[I]f the eventual victim‘s death is not the natural and probable consequence of a defendant‘s act, then liability cannot attach.’ [Citation.]” (Concha, supra, 47 Cal.4th at p. 661.) When the defendant commits an inherently dangerous felony, the victim‘s self-defensive killing is generally found to be a natural and probable response to the defendant‘s act, and not an independent intervening cause that
This record contains ample evidence to support a conclusion that Perla committed a provocative act that caused Canas to kill Morales. The evening before the killing, Perla plotted with Ricardo and other members of the family to “kick [Canas‘s] ass.”10 That night, Perla went with Morales and Jorge to meet Canas, anticipating a violent confrontation. Morales brought a BB gun and shot it out the car window several times while waiting for Canas. As noted, Canas did not appear. The next morning, Perla set events in motion. She roused first Jorge and then Morales for another attack on Canas. It was Perla‘s idea to ambush Canas at the corner where he routinely picked up his young daughter. They stopped at Ricardo‘s house to make sure he had not yet done so. She then drove to the corner with a loaded rifle in her car, and she tried to induce Osguera to leave the scene before their target arrived. While Morales attacked Canas and stabbed him, Perla stayed near the car containing the rifle she had brought. When Canas appeared to get the upper hand in the fight, Morales ran to Perla. Perla got the rifle from her car, cocked it, and turned toward Canas. Having made clear to Morales what she intended him to do, she handed him the rifle. A struggle ensued during which Canas was shot three times. He then managed to seize the gun and shoot his attacker.
By bringing a loaded rifle to the scene, preparing it for firing, then handing it to her accomplice, Perla dramatically escalated the level of violence in the encounter. Introducing a loaded firearm into the fight went beyond the acts necessary to “kick [Canas‘s] ass.” In producing the rifle, turning it toward Canas, and putting it in the hands of Morales, who had just stabbed Canas in the face, Perla performed acts “‘fraught with grave and inherent danger to human life.‘” (Taylor v. Superior Court (1970) 3 Cal.3d 578, 584, overruled on other grounds in People v. Antick (1975) 15 Cal.3d 79, 92, fn. 12.)
Perla argues her conduct was not sufficiently violent to support the conviction because some cases have stated that provocative act murder liability must be premised on a “life-threatening act” that provokes a deadly response. (See, e.g., In re Joe R. (1980) 27 Cal.3d 496, 505;
The evidence also establishes that Perla acted with malice. She put the violent conduct in motion after a night of repose. She recruited her brother and her boyfriend to ambush Canas. She confirmed the child had not been picked up. She drove to the ambush location with her license plate obscured and with a loaded gun in her car. She watched as Morales stabbed Canas. The jury could infer from this evidence that Perla planned the assault on Canas and planned for either herself or her accomplices to use deadly force in the assault. Indeed, she expressed a clear intent for Morales to shoot Canas when she faced Canas before handing the loaded, cocked weapon to her boyfriend. This uncontested evidence about Perla‘s use of the gun, and the jury‘s finding that she used a firearm, supports the conclusion that she acted with malice. (See Gilbert, supra, 63 Cal.2d at p. 704; People v. Lima, supra, 118 Cal.App.4th at p. 267; see also post, at pp. 661-664 [addressing whether malice here was express or implied].)
Finally, substantial evidence demonstrates that Perla‘s provocative acts proximately caused Morales‘s death. “To be considered a proximate cause of [the victim‘s] death, the acts of the defendant[] must have been a ‘substantial factor’ contributing to the result. [Citations.]” (People v. Caldwell, supra, 36 Cal.3d at p. 220.) Morales stabbed Canas but then lost the fight and ran toward Perla. It was in this context that she got the rifle, cocked it, and then handed it to her accomplice. The death of one of the participants was a natural and probable consequence of Perla‘s conduct. (See Cervantes, supra, 26 Cal.4th at p. 869; People v. Roberts, supra, 2 Cal.4th at p. 321.) This was
This fact pattern is distinguishable from the one presented in Cervantes. Cervantes and other Highland Street gang members attended a large party thrown by the Alley Boys gang. The two gangs were peaceful until Cervantes argued with a woman who was associated with the Alley Boys gang, leading one of its members to chide Cervantes for acting disrespectfully. (Cervantes, supra, 26 Cal.4th at pp. 863, 872, fn. 12.) The conflict escalated, and Cervantes shot Richard Linares, an Alley Boys gang member who had intervened in an effort to defuse the situation. (Ibid.) A melee followed and gang challenges were exchanged. A minute or two later, a group of Alley Boys shot and killed Hector Cabrera, whom they recognized as a member of the Highland Street gang. (Ibid.) On appeal, we concluded Cervantes could not be held liable under the provocative act doctrine because his conduct was not a proximate cause of Cabrera‘s murder. (Id. at p. 872.) Cervantes was not the initial aggressor in the incident that gave rise to the melee. There was no evidence Cabrera‘s killers had seen Cervantes shoot Linares, and Cervantes had fled the scene by the time Cabrera was shot. (Ibid.) Because the Alley Boys killers were not responding to Cervantes‘s act by shooting back at him, or an accomplice, their killing of Cabrera could not be considered a “‘reasonable response to the dilemma thrust upon [them]‘” by Cervantes‘s conduct. (Id. at p. 873, quoting Gilbert, supra, 63 Cal.2d at p. 705.) Instead, the killers acted on their own initiative to avenge a situation in which neither they nor their victim had been involved. Based on these facts, we concluded the willful and malicious murder of Cabrera was a product of the Alley Boys’ independent criminal conduct and, thus, an intervening cause that absolved Cervantes of liability. (Cervantes, at pp. 872-874.)
The circumstances here are quite different. The jury rejected Perla‘s assertion that, when Canas killed Morales, Canas acted with malice and used force beyond that allowed for lawful self-defense. The entire episode was thrust upon an unsuspecting Canas, who responded to Perla‘s provocative acts by disarming and killing Morales. Under these circumstances, Canas‘s self-defensive actions were neither criminal nor an independent cause of death. Thus, Cervantes is distinguishable. Canas‘s subsequent conduct is also consistent with this conclusion. Canas did not flee or try to dispose of the weapon. Instead, although injured himself, he remained at the scene, surrendered the gun, and cooperated with police.
Finally, Perla‘s persistence in pursuing a violent confrontation with Canas is significant. The decision to abandon a conflict is an important one in the law. Doing so may indicate a lack of criminal intent.11 A refusal to do so may reflect the required mens rea. Here, Perla had many opportunities to walk away from the conflict but relentlessly refused to do so. After the “family council” in which she raised the prospect of assaulting Canas, she went with Jorge and Morales to the place chosen for the fight. She knew that Morales had a BB gun because he shot it several times out the car window. When they left the scene because Canas did not arrive, there was a major break in the action. But Perla refused to let matters lie. The next day, even after rounding up her accomplices and bringing a gun to the scene, she had several opportunities to turn away from the potential for violence. As noted, the trio had to wait for Canas‘s arrival. Rather than leave, Perla stayed and tried to persuade Osguera to depart. During the initial conflict between Canas and Morales, Perla did nothing to try to stop the fight. When Morales ran to
II. Instructional Error Was Harmless
As noted, Perla was convicted of the attempted premeditated and deliberate murder of Canas. She did not challenge that conviction in the Court of Appeal or otherwise claim the jury was improperly instructed on that count. She does assert error, however, in the instructions addressing the mental state required to convict her of the first degree murder of Morales.
The jury instructions summarized the possible options for verdicts on the charged offenses.12 With respect to the crime against Canas (count 1), the jury was told it could find Perla guilty of either attempted murder or attempted voluntary manslaughter, or not guilty of any crime. The jury was instructed accordingly on the required elements of attempted murder (CALCRIM No. 600) and attempted voluntary manslaughter, under the theories of heat of passion (CALCRIM No. 603) and imperfect self-defense (CALCRIM No. 604). With respect to the death of Morales (count 2), the jury was told it could find Perla guilty of either first or second degree murder, voluntary manslaughter or not guilty of any crime. It was instructed on the requirements for provocative act murder (CALCRIM No. 560), and on the lesser-included offense of voluntary manslaughter (CALCRIM Nos. 570, 571).
The jury received potentially confusing instructions about how to determine the degree of the Morales murder. With regard to the provocative act murder of Morales, the jury was told: “If you decide that the defendant is guilty of murder, you must decide whether the murder is first or second degree. [] To prove that the defendant is guilty of first degree murder, the People must prove that: [[] One, as a result of the defendant‘s provocative act, Fernando Morales was killed during the commission of attempted willful, deliberate, and premeditated murder; and [][] Two, defendant intended to commit attempted willful, deliberate, and premeditated murder when she did the provocative act. [][] In deciding whether the defendant intended to commit attempted willful, deliberate, and premeditated murder and whether the death occurred during the commission of attempted willful, deliberate, and premeditated murder, you should refer to the instructions I have given you on attempted willful, deliberate, and premeditated murder.” (CALCRIM
These instructions properly informed the jury that, before Perla could be convicted of the provocative act murder of Morales, the prosecution had to prove Morales was killed during the commission of an attempted premeditated and deliberate murder. Furthermore, the jury was instructed that a first degree murder conviction required a finding that Perla herself acted with an intent to kill formed after deliberation, and with premeditation, when she committed the provocative act. The terms “willful,” “deliberate,” and “premeditated” were properly defined and linked to Perla. It is the last sentence of CALCRIM No. 601, set out in boldface above, that creates the potential for confusion. That sentence is a correct statement of the mental state requirements for an attempted murder committed by a defendant and an accomplice. When referred to in the context of defining a first degree provocative act murder, however, the sentence gives the incorrect impression that the defendant can be found to have acted with premeditation and deliberation if either the defendant or an accomplice harbored that mental state.
We recently explained the circumstances in which liability for first degree murder may attach under the provocative act doctrine: “Where the
Here, the jury was properly instructed in detail about the mental state Perla was required to have in order to be convicted of the first degree murder of Morales. However, because the court cross-referenced CALCRIM No. 601‘s instruction on attempted murder, they were also told that the mens rea requirement for this conviction could be satisfied if Morales acted with premeditation and deliberation in attempting to kill Canas. The final sentence of CALCRIM No. 601 is an incorrect statement of the mens rea required for first degree murder under the provocative act doctrine, as the Attorney General concedes.
Both sides agree the instructions were deficient, but they disagree about whether the error requires reversal. (See Concha, supra, 47 Cal.4th at pp. 666-667 [remanding for determination of prejudice].) The conflicting sentence in CALCRIM No. 601 had the potential to override, or cancel out, the otherwise correct instructions the jury received on first degree murder, making it conceivable that the jury could convict on first degree murder without deciding whether Perla acted with premeditation and deliberation. The same potential for prejudice arises when jury instructions omit an element of an offense. Accordingly, we consider the prejudicial effect of the error here in the context of cases dealing with the failure to instruct on all elements of an offense.
“[A]n instructional error that improperly . . . omits an element of an offense . . . generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the
The jury heard uncontroverted evidence that Perla personally premeditated and deliberated the attempted murder of Canas. Perla came to her brother Ricardo‘s house the night of his dispute with Canas. She plotted with others to assault Canas in retribution. She went with her brother Jorge and Morales to the spot where they planned to fight Canas. After that goal was thwarted because Canas did not arrive, Perla devised a new plan, which she launched the next morning. With her license plate obscured and a loaded rifle in the back of her car, she rounded up her accomplices and checked to make sure Canas had not yet picked up his daughter. She then drove to the planned ambush spot and waited for Canas. She urged an adult witness (Osguera) to leave before the confrontation occurred. During the ensuing fight initiated by her accomplice, Perla waited by the car, the rifle within reach. When the fight turned against Morales, Perla immediately seized the loaded weapon, pulled back the hammer so that it was ready to fire, and handed it to Morales for him to use against Canas.
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, we identified three categories of evidence relevant to determining premeditation and deliberation: (1) events before the murder that indicate planning; (2) a motive to kill; and (3) a manner of killing that reflects a preconceived design to kill. As we have repeatedly pointed out, and now reaffirm, “[t]he Anderson guidelines are descriptive, not normative. [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1125.) They are not all required (see People v. Lucero (1988) 44 Cal.3d 1006, 1021), nor are they exclusive in describing the evidence that will support a finding of premeditation and deliberation. (People v. Perez, at p. 1125.)
The defense strongly contested Perla‘s intent to kill Canas, claiming instead that she acted in self-defense or defense of others. Defense counsel argued that Perla handed Morales the gun because she wanted to help him protect himself, not because she had maliciously intended that he use it to kill. However, in finding Perla guilty of attempted murder, the jury necessarily determined that she personally intended to kill Canas. “‘[T]he crime of attempted murder requires a specific intent to kill . . . .’ [Citation.]” (People v. Guerra, supra, 40 Cal.3d 377, 386.) Apart from disputing her intent to kill, Perla introduced no evidence or argument challenging the prosecution‘s case on the Anderson premeditation and deliberation factors. As the Court of Appeal determined on remand in People v. Concha,14 here “the evidence [Perla] introduced dealt with [her] participation in the murder and [her] intent to kill, and the jury found against [her] on those points. [She] did not contest the facts that go specifically to premeditation and deliberation. . . .” (People v. Concha, supra, 182 Cal.App.4th at p. 1090.) Thus, “[t]he facts supporting premeditation and deliberation were uncontradicted once the intent element was established.” (Ibid.)
Finally, Perla argues the instructional error cannot be considered harmless because, even if a hypothetical rational jury would have found she acted with premeditation and deliberation, there is an indication that this jury may have rendered a verdict tainted by the error. Like the dissenting justice below, she finds it significant that the jury sent out a note during deliberations requesting an explanation of second degree murder. In response, the court directed the jury to CALCRIM No. 560. As noted, CALCRIM No. 560 directly and accurately described the state of mind Perla herself must have formed to be guilty of first degree murder. However, the version of CALCRIM No. 560 given to this jury also referred to the instruction on attempted murder for an explanation of premeditation and deliberation.
In light of the jury‘s question, Perla argues the appropriate test of prejudice is not whether a rational jury would have found she acted with premeditation and deliberation (Neder, supra, 527 U.S. at p. 18), but whether circumstances make it clear beyond a reasonable doubt that this jury so found. She argues Neder‘s harmless error test applies only when the omitted element is undisputed and supported by overwhelming evidence. Because her mental state was a hotly contested issue at trial, Perla contends the appropriate harmless error test is furnished not by Neder, but by Yates v. Evatt (1991) 500 U.S. 391, 404-405. We disagree. Yates articulated guidelines for determining when an erroneous mandatory presumption instruction is harmless. The prejudicial impact of such an error is quite different from the omission of an instruction on a required element of an offense. Presumptions narrow the jury‘s focus and may potentially cause jurors to ignore evidence related to the matter presumed. (See id. at
By contrast, Neder furnishes the appropriate harmless error test for instructions that erroneously omit an element of an offense. (People v. Mil (2012) 53 Cal.4th 400, 409-415.) In this context, the Neder court concluded a demonstration of harmless error does not require proof that a particular jury “actually rested its verdict on the proper ground (Neder, supra, [527 U.S.] at pp. 17-18), but rather on proof beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error (id. at p. 18). Although the former can be proof of the latter (see id. at p. 26 (conc. opn. of Stevens, J.)), the Neder majority made clear that such a determination is not essential to a finding of harmlessness (id. at p. 16, fn. 1), which instead ‘will often require that a reviewing court conduct a thorough examination of the record’ (id. at p. 19).” (People v. Cross (2008) 45 Cal.4th 58, second italics added (conc. opn. of Baxter, J.).)
We have exhaustively reviewed the trial evidence to determine “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element” of premeditation and deliberation. (Neder, supra, 527 U.S. at p. 19; see People v. Mil, supra, 53 Cal.4th at p. 417.) We have concluded no rational juror could find that Perla intended to murder Canas but did not personally act with premeditation and deliberation.
Perla speculates that the jury‘s request for an instruction on second degree murder indicates it was focused on the issue of whether she could be held vicariously liable for Morales‘s mental state. However, other concerns may have just as easily prompted the request. The jury‘s note first asked, “Is [instruction] # 39 for second degree murder?” It then stated, “We need an explanation of 2nd degree murder.” Although the jury had received instructions on all the lesser-included offenses of murder and attempted murder, and a specific instruction defining premeditated and deliberate attempted murder, it received no separate instruction explaining what constitutes a second degree murder. The jury was simply told, as jurors have long been instructed in this state, that a murder that does not meet the requirements of first degree murder is murder in the second degree. The jury may have believed it was
Because the evidence shows beyond a reasonable doubt that a rational jury would have found that Perla personally premeditated and deliberated the attempted murder of Canas, the absence of an instruction on this point was harmless. (Neder, supra, 527 U.S. at p. 18.)
DISPOSITION
The judgment of the Court of Appeal is affirmed.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Liu, J., concurred.