A jury unanimously agrees that a defendant is guilty of murder. Must all jurors either unanimously agree defendant is the killer, or unanimously agree that he aided and abetted the killer? Appellant Raul Becerra Quiroz (Quiroz) argues that Apprendi v. New Jersey (2000)
FACTS AND PROCEDURAL HISTORY
The Crime
Early in the morning of August 27, 2005, Brian Szostek (Szostek) was shot four times while sitting in the rear passenger seat of a gold Pontiac. He was dumped in an alley in Oxnard and died soon thereafter.
Quiroz and Szostek were childhood friends. Several months prior to his death, Szostek had called Quiroz for the telephone numbers of two drug dealers. Unbeknownst to Quiroz, Szostek was cooperating with law enforcement. Both dealers were subsequently arrested after drug buys Szostek arranged. One of those dealers, Hector Flores, later asked Quiroz about Szostek’s connection to undercover officers. Flores closed their discussion by asking, “Are we- on?” Quiroz replied, “Right on, dude.”
The night before the shooting, Quiroz borrowed the gold Pontiac, picked up Szostek, and dropped him off at a house in Oxnard. Later that evening, Szostek and three other men drove around in the Pontiac for hours. Quiroz’s presence in the car was disputed. Quiroz admitted to two fellow inmates that he had been present (and had shot Szostek), and Quiroz’s account was corroborated by one of the car’s passengers and by two other witnesses who had seen Quiroz or someone who looked “very familiar [sic: similar]” to Quiroz in the car that night. At trial, however, the passenger recanted his prior statement and said Quiroz was not present.
Just hours after the shooting, Quiroz was driving around in the Pontiac with the same passenger who initially said Quiroz was present when Szostek
Prosecution
The People charged Quiroz with the first degree murder of Szostek (Pen. Code, § 187, subd. (a)),
In the midst of voir dire, the People submitted proposed jury instructions, including an aiding and abetting instruction. After the People rested their case-in-chief and after Quiroz had called two of his witnesses, the trial court held its initial jury instruction conference. At that conference, the People again requested that the jury be instructed on the theories of aiding and abetting liability and direct liability. Over Quiroz’s objection, the court tentatively ruled that substantial evidence supported Quiroz’s liability as an aider and abettor. Quiroz then called another six witnesses.
At the final conference on jury instructions, Quiroz renewed his objection to any aiding and abetting instruction. He did not request an instruction requiring juror unanimity in selecting between aiding and abetting liability and direct liability. The trial court instructed the jury on direct and aiding and abetting liability. During his closing argument, Quiroz criticized the People for shifting their story from Quiroz as the shooter, to Quiroz as an aider and abettor.
The jury found Quiroz guilty of murder and being a felon in possession of a firearm, but split 11 to one on whether Quiroz personally used a firearm. The court declared a mistrial on the personal use of a firearm allegation, and sentenced Quiroz to 28 years to life in prison.
DISCUSSION
Quiroz argues that the trial court erred in instructing the jury on aiding and abetting liability because (1) the People requested the instruction so late in the trial as to deny him the effective assistance of his counsel and (2) the People never identified the shooter. Quiroz further contends that any aiding
I. Timeliness of Request for Instruction
Quiroz asserts that the People unconstitutionally interfered with his right to counsel by proposing their alternative, aiding and abetting theory too late in the trial proceedings. Quiroz contends that his counsel had no ability to respond to this new theory due to this late notice. Drawing on Sheppard v. Rees (9th Cir. 1989)
Under California’s practice of short-form pleading, an instrument charging a defendant ás a principal is deemed to charge him as an aider and abettor as well. (§ 971.) This “notice as a principal is sufficient to support a conviction as an aider or abettor . . . . without the accusatory pleading reciting the aiding and abetting theory ....’” (People v. Garrison (1989)
A criminal defendant also has a federal constitutional right to “ ‘be informed of the nature and cause of the accusation.’ ” (Gray v. Raines (9th Cir. 1981)
The People submitted an aiding and abetting instruction as part of their proposed jury instructions early on—during voir dire. The prosecutor explicitly renewed his request for that instruction at the initial charging conference five days before closing argument, and while Quiroz was still presenting his case. Indeed, the defense called six more witnesses after that charging conference. Quiroz had more than sufficient notice of the People’s intention to proceed on an aiding and abetting theory. Furthermore, because the People in no way ambushed Quiroz with their aiding and abetting theory, Sheppard is distinguishable. (See Lucas, supra,
Any late notice is harmless in any event. Sheppard adopted a rule of automatic reversal because the state’s “ambush” had effectively denied Sheppard the assistance of counsel. (Sheppard, supra, 909 F.2d at pp. 1237-1238.) By contrast, in cases where a new theory is introduced late in the game for reasons other than prosecutorial gamesmanship, courts have employed a harmless error test. That test looks to whether the late notice “unfairly prevented [defense counsel] from arguing his or her defense to the jury or . . . substantially misled [counsel] in formulating and presenting arguments.” (Gaskins, supra,
Quiroz had ample time to call witnesses and tailor his closing argument after the People reaffirmed their request for an aiding and abetting instruction. Indeed, Quiroz capitalized on the People’s midtrial shift in emphasis during his closing argument. Any late notice was therefore also harmless.
II. Identification of the Principal
Quiroz also argues that an aiding and abetting instruction may not be given unless and until the People produce sufficient evidence of the identity of the
On occasion, courts have observed that an aider and abettor must act with the same “specific intent” as the principal. (People v. Beeman (1984)
No court has required a specific perpetrator to be identified. Quiroz directs us to People v. Singleton (1987)
Nor will we create such a requirement now. If we did so, we would effectively preclude aiding and abetting liability in those cases in which it is unclear which of several persons involved in a crime was the perpetrator, but equally clear that those persons acted together in committing the crime.
This case illustrates why Quiroz’s novel proposal is unnecessary and unwise. No one disputes that someone shot Szostek. Moreover, the People presented sufficient evidence that this perpetrator—whoever he was—acted with premeditation. The evidence showed that one or more people who drove with Szostek in the Pontiac knew he was an informant, shot Szostek four times while he was still in the backseat, dumped him in an alley, and subsequently concealed the damage to the car. Quiroz hypothesizes that Szostek could have been shot impulsively; but this speculation does not undermine the substantial evidence that the shooter acted with premeditation. More to the point, we are able to make this assessment regarding the principal’s intent without knowing which of the Pontiac’s three other occupants pulled the trigger. Requiring the People to name a principal is accordingly unnecessary. It is also unwise because Quiroz’s proposal would compel us to conclude that no one could be held liable for Szostek’s murder, despite the evidence that his murder was premeditated.
Quiroz further argues that the trial court was obligated to give a unanimity instmction. This instruction would have required all 12 jurors to agree on whether Quiroz was the shooter or a person who aided and abetted the shooter. Quiroz argues that the United States Supreme Court’s decisions in Apprendi, supra,
For decades now, California law has conditioned the duty to give a unanimity instmction on whether the evidence at trial indicates that the defendant committed more than one “ ‘discrete criminal event.’ ” (People v. Russo (2001)
Where, however, the evidence suggests that a defendant committed only one discrete criminal action—but may have done so in one of several different ways—no unanimity instmction is required. (Russo, supra,
On the basis of this authority, California courts held that a unanimity instruction is not required as to which overt act was committed in furtherance of a conspiracy (Russo, supra, 25 Cal.4th at pp. 1135-1136); which felony the defendant intended to commit when burglarizing a house (People v. Failla (1966)
For the same reasons, California courts have also held that a jury need not agree on the legal theory underlying a single murder charge. This rule applies whether the choice is between premeditated murder and felony-murder theories (Beardslee, supra, 53 Cal.3d at pp. 92-93; Ardoin, supra, 196 Cal.App.4th at pp. 126-127; Pride, supra, 3 Cal.4th at pp. 249-250), or between direct liability and aiding and abetting liability theories (People v. Wilson (2008)
The United States Supreme Court has declared this approach to defining when unanimity instructions are required to be consistent with the requirements of due process. In Schad v. Arizona (1991)
Do Apprendi and Ring undermine Schad and thereby compel a change in our approach to jury unanimity? The specific holdings of Apprendi and Ring
Nor do the rationales of Apprendi or Ring dictate or counsel any change. Contrary to what Quiroz asserts, Apprendi and Ring did not decree a wholesale abandonment of deference to how states define their crimes. To the contrary, these two cases reaffirmed Schad’s deference to the authority of states to delineate crimes. They also embraced Schad’s reluctance to discard state law labels except when compelled by constitutional necessity. As we note above, the rights at issue in Apprendi and its progeny do not create such necessity in this case. Moreover, Quiroz has not identified any other constitutional right at issue here that would justify overriding California’s longstanding authority to treat direct liability and aiding and abetting liability as alternative legal theories rather than as two separate crimes. Absent a superseding constitutional right, we would be disregarding deference to state law just for the sake of doing so. Apprendi, Ring and Schad speak in a uniform voice in decrying such judicial activism.
Given this dynamic, it is no surprise that courts have not read Apprendi as vitiating California’s authority to distinguish between alternative theories and separate crimes, and to insist upon unanimity only for separate crimes. Following Apprendi, numerous cases have reaffirmed the rule that a jury need not unanimously agree whether the defendant committed premeditated murder or felony murder. (People v. Moore (2011)
This is the first case to squarely confront Apprendi’s application to the alternative theories of direct and aiding and abetting liability. Quiroz argues that these alternative theories are different from the alternative theories of premeditation and felony murder because a jury choosing between the theories of felony murder and premeditation will still have to unanimously agree on what the defendant did. But this is not always true. In Perez, for example, the defendant was alternatively charged with felony murder and premeditation on theories entailing two entirely different factual scenarios.
Reading Apprendi to require unanimity for alternative theories would jettison decades of precedent and, at the same time, abrogate deference to state legislators’ definitions of crimes without any constitutional imperative. It would also lead to absurd results: As our Supreme Court has noted, “ ‘[i]f 12 jurors must agree on the role played by the defendant, the defendant may go free, even if the jurors all agree [he] committed the crime.’ ” (Russo, supra,
IV. Remaining Instructional Challenges
A. Substantial evidence to support aiding and abetting instruction
Quiroz argues that the trial court should have refused to give the aiding and abetting instruction because substantial evidence did not support a finding that he knew of the shooter’s intent to kill or that Quiroz intended to aid the shooting. (People v. Beeman, supra,
Substantial evidence supports the trial court’s decision to instruct on aiding and abetting liability. The evidence adequately demonstrated Quiroz’s awareness and complicity in Szostek’s killing. Quiroz spoke with Flores about Szostek’s role in bringing down Flores’s drug organization; Quiroz borrowed the Pontiac and picked up Szostek on the night of his death; Quiroz may have been present in the car at the time Szostek was shot; Quiroz showed up unbidden at the home of the woman who picked up Szostek’s body just hours after the shooting; also just hours after the shooting, Quiroz was driving around in the Pontiac with one of the witnesses to the shooting; Quiroz cleaned up the Pontiac, returned it to its owner, and advised the owner to “lay low”; and Quiroz admitted to the shooting and knowing many of its details to two fellow inmates.
Quiroz also asserts that the trial court erred in not instructing the jury that his postshooting conduct was insufficient, by itself, to convict him of aiding and abetting. Quiroz never requested such an instruction prior to closing argument. To the extent Quiroz argues that the trial court was obligated to instruct the jury on the crime of being an accessory after the fact, he is incorrect because doing so would have been error in light of the People’s objection. (Majors, supra,
V. Evidentiary Challenges
A. Statement of Ruben Gonzales (Gonzales)
1. Pertinent facts
Gonzales was a defense witness. He testified that Quiroz was not in the Pontiac when Szostek was shot. Quiroz’s counsel asked Gonzales about a prior statement Gonzales made to police. In response to counsel’s specific questions about the circumstances under which Gonzales made that statement, Gonzales indicated that the police had told him that he could cooperate or face 50 years to life in prison and that they knew all the answers, including that Quiroz was in the Pontiac at the time of the shooting.
In rebuttal, the People called one of the detectives who had interviewed Gonzales. The detective relayed the substance of Gonzales’s statement— namely, that Quiroz had been in the Pontiac, and had told Gonzales to keep quiet about the shooting. The detective also described the circumstances of Gonzales’s two-hour interview. Gonzales had not been under arrest. The detective and other officer gave Gonzales the information they believed to be true, told Gonzales that they knew he was not the shooter, and told him he
2. Analysis
Quiroz argues that the trial court should have excluded Gonzales’s statement as coerced. Because he is seeking to suppress Gonzales’s statement (and not his own), Quiroz bears the burden of proving the statement was coerced. (People v. Badgett (1995)
Quiroz has forfeited this claim by failing to object below. (People v. Kennedy (2005)
Quiroz argues we should nevertheless consider his claim because his trial counsel was constitutionally ineffective for not objecting and there is “no satisfactory explanation” for counsel’s lapse. (People v. Huggins (2006)
Quiroz points out that Gonzales may have been unlawfully “seized” in violation of the Fourth Amendment or in “custody” for purposes of Miranda v. Arizona (1966)
Nor does Gonzales’s interrogation suffer from the same flaws as the interrogation in People v. Lee (2002)
B. Quiroz’s jailhouse statement to Ismael Cano
1. Pertinent facts
In January 2006, jail officials moved Quiroz into a cell beside Ismael Cano (Cano). They told Quiroz the move was for security reasons—namely, that the Mexican Mafia had ordered a “hit” on Quiroz. In tmth, they moved him to be near Cano, a jailhouse informant. Cano told Quiroz that he was part of
2. Analysis
Quiroz contests the admission of his incriminating statements to Cano. Because Quiroz raises this objection for the first time on appeal, it is forfeited. It is also without merit.
Quiroz argues that three aspects of his statement render it involuntary: (1) Quiroz faced a credible threat of physical violence because he was told he was moved to a different cell for safety reasons; (2) the prison officials lied about why he was moved and Cano lied about being Flores’s cousin; and (3) Cano made an indirect offer to call off Flores’s organization if Quiroz confessed to killing Szostek. This situation, Quiroz claims, is indistinguishable from the confession held to be involuntary in Arizona v. Fulminante (1991)
To begin with, the factors Quiroz cites do not amount to coercion on the record we have before us. Although the jail officials moved Quiroz because of an alleged “threat” of a hit, there is no evidence that Quiroz had any reason to believe those threats originated with Flores. Moreover, the two deceptions involved—(1) that the prison officials did not honestly tell Quiroz he was being moved so Cano could try to surreptitiously befriend him and elicit incriminating statements and (2) that Cano exaggerated his connection to Flores (as a cousin rather than business associate)—are not of the type “reasonably likely to produce an untrue statement.” (Scott, supra,
The judgment is affirmed.
Gilbert, P. J., and Perren, J., concurred.
A petition for a rehearing was denied May 1, 2013, and appellant’s petition for review by the Supreme Court was denied July 10, 2013, S210679.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Unless otherwise indicated, all statutory references are to the Penal Code.
We would evaluate the trial court’s resolution of any evidentiary disputes for substantial evidence (People v. Richardson, supra, 43 Cal.4th at pp. 992-993), except that we have no such findings because Quiroz never asked the court to make them.