People v. Charfauros CA4/1 ( 2015 )

Filed 9/18/15 P. v. Charfauros CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064666
Plaintiff and Respondent,
v. (Super. Ct. No. SCD235440)
ALEX CHARFAUROS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth
K. So, Judge. Affirmed as modified.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Alex Charfauros guilty of 15 criminal offenses arising from an
incident on October 27, 2010, in which San Diego Police Officer Christopher Wilson was
shot and killed while forcing entry into a closed bedroom in Charfauros's apartment.
Specifically, Charfauros was found guilty of second degree murder of a police officer
(Pen. Code, §§ 187, subd. (a), 190, subd. (b) [count 1]);1 four counts of premeditated
attempted murder of a police officer (§§ 664, subd. (e), 187, subd. (a), 189 [counts 2-5]);
attempting to harm a police dog resulting in serious injury (§§ 600, subds. (a), (c), 664
[count 6]); four counts related to the possession or sale of methamphetamine (§ 182,
subd. (a)(1); Health & Saf. Code, §§ 11379 [count 15], 11370.1, subd. (a) [count 7],
11378 [count 9], 11366 [count 12]); resisting, delaying or obstructing a police officer
(§ 148, subd. (a)(1) [count 16]) and conspiracy to commit the same offense (§§ 148,
subd. (a)(1), 182, subd. (a)(1) [count 13]); conspiracy to commit an act injurious to the
public health or public morals or to pervert or obstruct justice or the due administration of
the laws (§ 182, subd. (a)(5) [count 14]); possession of a firearm by a felon (former
§ 12021, subd. (a)(1) [count 10]); and unlawful possession of ammunition (former
§ 12316, subd. (b)(1) [count 11]). In connection with several of the counts, the jury also
found that Charfauros was vicariously armed with a firearm (§ 12022, subd. (a)(1)).
The trial court sentenced Charfauros to prison for an indeterminate term of 85
years to life, plus a determinate term of 11 years.
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2
Charfauros contends (1) insufficient evidence supports the convictions for murder,
attempted murder and serious injury to a police dog; (2) the trial court prejudicially erred
in admitting certain testimony of law enforcement officers; (3) the trial court improperly
imposed an enhanced sentence for the attempted murder counts based on findings that the
attempted murders were willful, deliberate and premeditated, as that allegation was not
made in the indictment; (4) the trial court improperly imposed and stayed full-term
sentences on certain of the subordinate determinate terms, i.e., counts 7, 9, 10, 11, 12 and
14, instead of one-third the middle-term sentence; and (5) the trial court erred in the
amount of the laboratory fee imposed under Health and Safety Code section 11372.5,
subdivision (a).
We conclude Charfauros's last two arguments have merit, but reject all of the
others. Accordingly, we modify the judgment to reflect corrected sentences on counts 7,
9, 10, 11, 12 and 14 and a corrected laboratory fee. As modified, we affirm the
judgment.2
I
FACTUAL AND PROCEDURAL BACKGROUND
In October 2010, Charfauros, who was on probation, lived in a two-bedroom
upstairs apartment in San Diego with Holim Lee and Lee's girlfriend, Lucky Xayasene.
Lee was wanted on a warrant for assault with a deadly weapon, and United States
2 Charfauros has also filed a petition for writ of habeas corpus (In re Alex
Charfauros, D066787). On October 21, 2014, we indicated that habeas petition would be
considered at the same time as this appeal. In an order concurrently filed with this
opinion, we have denied the petition for writ of habeas corpus.
3
Marshal Service Deputy Jeffrey Roxas obtained information that Lee had been seen two
weeks earlier at Charfauros's apartment. In an attempt to ascertain Lee's whereabouts,
Deputy Roxas asked Charfauros's probation officer, Officer Bobby Burns, if they could
go together to search Charfauros's apartment.
On October 27, 2010, around 10:00 p.m., a group of probation officers and United
States Marshals Service deputies arrived unannounced at Charfauros's apartment to
conduct a probation search. As the officers prepared to knock on the apartment door, the
door was opened from inside by a surprised Asian man. Officer Burns did not think the
man looked like Charfauros, and he therefore asked if Charfauros was there. The man
said, "Nope," and slammed and locked the door.
The officers kicked in the locked door and began to move through the apartment.
A bedroom door at the end of the hallway was hanging off its hinges and had a large hole
in the middle. That bedroom was later determined to be Charfauros's room. The door to
the second bedroom was closed. That bedroom was later determined to be Lee and
Xayasene's bedroom.
Meanwhile, an officer posted outside the apartment saw Charfauros trying to
climb down a ladder out of his bedroom window. The officer directed Charfauros to go
back inside the apartment, and Charfauros complied. A short time later, the officers
inside the apartment saw Charfauros's hand extending out of the doorway of his bedroom.
Charfauros eventually complied with orders to get down on the ground and crawl down
the hallway to the living room. Charfauros was handcuffed and taken out onto a landing
and then downstairs into a courtyard.
4
Based on Officer Burns's belief that Charfauros was not the person who opened
and then slammed the door, the officers believed someone else was likely still inside the
apartment, and they radioed for assistance from the San Diego Police Department. While
waiting for the police officers to arrive, several probation officers heard clicking or
crackling sounds coming from Lee and Xayasene's closed bedroom.
After Charfauros was taken into custody, police officers, probation officers and
United States Marshals Service deputies repeatedly asked Charfauros to tell them who
was in the apartment and whether there were any weapons or drugs in the apartment.
Charfauros was questioned by several officers from the time he was handcuffed in the
apartment through the time that he was detained downstairs in the courtyard. Officers
who participated in or overheard the questioning of Charfauros testified that Charfauros
replied that he did not know who was in the apartment because he had been asleep before
the officers arrived. Several officers heard Charfauros state that there were no weapons
in the apartment.
San Diego Police Department officers arrived on the scene and relieved the
probation officers and United States Marshals Service deputies who were posted in the
apartment. Police officers determined based on photographic identifications made by
some of the probation officers that the person who opened and then slammed the door to
the apartment was likely Lee, and that Lee was still in the apartment.
Police officers decided to employ a police dog and to attempt to gain entry to Lee
and Xayasene's closed bedroom by kicking in the door. While San Diego Police Officer
Lorenzo Ruiz kicked in the door, San Diego Police Officers Michael Chinn, Travis
5
Whipple, Christopher Wilson and Michael McLeod, along with his police dog Monty,
took positions in the apartment. Immediately after Officer Ruiz kicked open the bedroom
door, a volley of gunfire erupted from inside the bedroom. Officers McLeod, Chinn and
Whipple returned fire. Officer Wilson was fatally shot in the head. Police dog Monty
received a gunshot wound to his snout.
During the shooting, Charfauros remained handcuffed in the downstairs courtyard,
still claiming that he did not know who was in the apartment and that no weapons were
present. One officer testified that during the shooting, Charfauros said, " 'Oh shit, oh shit.
I can't believe this is happening.' " Approximately 20 minutes had elapsed from the time
that Charfauros was taken out of the apartment in handcuffs to the eruption of gunfire
inside the apartment.
The officers called for the assistance of the SWAT team, and the apartment was
eventually cleared. Lee and Xayasene were found dead in the bedroom, having both
committed suicide by gunshots to their heads. Two other people, Patrick Luangrath and
Melissa Ortiz were removed from the bedroom and taken into custody. There were
several firearms in Lee and Xayasene's bedroom, along with ammunition. In addition
over 80 grams of methamphetamine was found in the apartment. Lee's gun fired the shot
that killed Officer Wilson. Xayasene had a .45 caliber handgun in her hand, which was
determined to have also fired rounds. Charfauros's DNA was found on a shotgun that
was recovered from Lee and Xayasene's bedroom, and shotgun shells were located in
Charfauros's bedroom.
6
Charfauros was charged with the murder of Officer Wilson; the attempted murder
of Officers Ruiz, Chinn, Whipple and McLeod; causing serious injury to police dog
Monty; along with nine other charges, including resisting a police officer, charges related
to the methamphetamine and the firearms and ammunition found in the apartment, and
two other conspiracy charges.
At trial, several officers testified that Charfauros's refusal to give information
about who was in the apartment and his statements that there were no weapons in the
apartment were important factors in how events developed. As the officers testified, had
Charfauros told them that firearms were present in the closed bedroom, they would have
called for a SWAT team response rather than attempting to enter the closed bedroom
themselves.
Several officers also testified at trial that although Officer Burns did not believe at
the time of the incident that Charfauros was the person at the apartment door, upon
further review of photographic evidence, they concluded that it was Charfauros, not Lee,
who opened and then slammed the apartment door. The jury also heard evidence that
Charfauros was an active member of a criminal street gang and was selling
methamphetamine together with Lee. Videos from cell phones found in the apartment
showed Charfauros, Lee and Xayasene smoking methamphetamine in Lee and
Xayasene's bedroom on multiple occasions and established that there had been several
guns in plain sight in the apartment's living room and Lee and Xayasene's bedroom on
October 26, 2010, the day before the shooting.
7
The jury found Charfauros guilty of second degree murder of a police officer
(§§ 187, subd. (a), 190, subd. (b) [count 1]); four counts of willful, deliberate and
premeditated attempted murder of a police officer (§§ 664, subd. (e), 187, subd. (a), 189
[counts 2-5]); attempting to harm a police dog resulting in serious injury (§§ 600,
subds. (a), (c), 664 [count 6]); possessing methamphetamine while armed with a firearm
(Health & Saf. Code, § 11370.1, subd. (a) [count 7]); possession for sale of
methamphetamine (id., § 11378 [count 9]); maintaining a place for selling
methamphetamine (id., § 11366 [count 12]); conspiracy to sell or furnish
methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379
[count 15]); resisting, delaying or obstructing a police officer (§ 148, subd. (a)(1)
[count 16]); conspiracy to delay or obstruct a police officer (§§ 148, subd. (a)(1), 182,
subd. (a)(1) [count 13]); conspiracy to commit an act injurious to the public health or
public morals or to pervert or obstruct justice or the due administration of the laws
(§ 182, subd. (a)(5) [count 14]); possession of a firearm by a felon (former § 12021,
subd. (a)(1) [count 10]); and unlawful possession of ammunition (former § 12316,
subd. (b)(1) [count 11]). For several of the counts, the jury further found that that
Charfauros was vicariously armed with a firearm. (§ 12022, subd. (a)(1).)
Charfauros was sentenced to prison for an indeterminate term of 85 years to life,
plus a determinate term of 11 years.
8
II
DISCUSSION
A. Substantial Evidence Supports the Conviction for the Assaultive Crimes
Charfauros contends that his convictions for the second degree murder of Officer
Wilson, four counts of attempted murder and one count of seriously injuring a police dog
(collectively, the assaultive crimes) are not supported by substantial evidence. As we
will explain, we reject Charfauros's argument.
In considering a challenge to the sufficiency of the evidence, "we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence — that is, evidence that is reasonable, credible, and of solid value —
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt . . . . We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. . . . If the circumstances reasonably justify the
trier of fact's findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding. . . . 'A
reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' "
(People v. Albillar (2010) 51 Cal. 4th 47, 60, citations omitted.)
1. The People's Theories of Charfauros's Criminal Liability for the Assaultive
Crimes
The People presented three theories of Charfauros's criminal liability for the
assaultive crimes: (1) Charfauros was guilty of conspiring with Lee and Xayasene to
resist, obstruct or delay a peace officer (as charged in count 13) and to commit an act
9
injurious to the public health or morals or to pervert or obstruct justice and the due
administration of the laws (as charged in count 14),3 with the natural and probable
consequence of Charfauros's participation in that conspiracy being Lee and Xayasene's
commission of the assaultive crimes; (2) Charfauros aided and abetted Lee and Xayasene
in resisting, obstructing or delaying a peace officer (as charged in count 16), with the
natural probable consequence of those offenses being the commission of the assaultive
crimes; and (3) Charfauros aided and abetted the assaultive crimes committed by Lee and
Xayasene.4
Charfauros contends that none of these theories of criminal liability for the
assaultive crimes are supported by substantial evidence. As we will explain, we find at
least two of these theories supported by substantial evidence, and we accordingly reject
Charfauros's challenge to the sufficiency of the evidence for the assaultive crimes.
3 Counts 13 and 14 relied on the same criminal conduct, namely the coconspirators'
resistance and obstruction of law enforcement officers on October 27, 2010. However, as
the prosecutor explained during closing argument, the charges in count 14 were intended
to be broader than the charges in count 13, because they also encompassed resistance and
obstruction of the United States Marshals Service deputies. (See § 830.1 [defining peace
officer].) As the criminal acts giving rise to both counts are the same, we discuss the
substantial evidence supporting those counts together.
4 The jury was instructed to consider whether Charfauros was guilty of first degree
murder or second degree murder, and it returned a verdict of second degree murder.
After the trial in this case, our Supreme Court established that "a defendant cannot be
convicted of first degree premeditated murder under the natural and probable
consequences doctrine." (People v. Chiu (2014) 59 Cal. 4th 155, 167 (Chiu).) As
Charfauros was convicted of second degree murder, Chiu's holding does not impact
Charfauros's conviction.
10
2. Charfauros's Criminal Liability for the Assaultive Crimes as a Natural and
Probable Consequence of a Conspiracy to Resist, Delay or Obstruct a
Peace Officer or Obstruct Justice as Charged in Counts 13 and 14
We first discuss whether substantial evidence supports Charfauros's conviction for
the assaultive crimes on the theory that the assaultive crimes were a natural and probable
consequence of the crime of conspiracy to resist, delay or obstruct a peace officer or
obstruct justice as charged in counts 13 and 14.
The question of whether substantial evidence supports a criminal conviction for
the assaultive crimes under this theory breaks down into two distinct issues. The first
issue is whether substantial evidence supports a finding that Charfauros committed the
crimes charged in counts 13 and 14, in that he conspired to resist, delay or obstruct law
enforcement officers. Second, assuming that Charfauros was properly convicted of the
commission of the conspiracy to resist, delay or obstruct the law enforcement officers as
charged in counts 13 and 14, the next issue is whether substantial evidence supports a
finding that the assaultive crimes were a natural and probable consequence of that
conspiracy. We examine each issue in turn.
a. Substantial Evidence Supports a Finding That Charfauros
Committed the Crimes of Conspiring to Resist, Delay or Obstruct
Law Enforcement Officers as Charged in Counts 13 and 14
" 'A conviction of conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of
an overt act 'by one or more of the parties to such agreement' in furtherance of the
conspiracy.' " (People v. Russo (2001) 25 Cal. 4th 1124, 1131.) Here the underlying
11
substantive offense for the conspiracy in count 13 was the crime of resisting, delaying or
obstructing a peace officer in the commission of his or her duties in violation of
section 148. The crime is committed if " '(1) the defendant willfully resisted, delayed, or
obstructed a peace officer, (2) when the officer was engaged in the [lawful] performance
of his or her duties, and (3) the defendant knew or reasonably should have known that the
other person was a peace officer engaged in the performance of his or her duties.' "
(People v. Ghebretensae (2013) 222 Cal. App. 4th 741, 759.) The underlying substantive
offense for the conspiracy in count 14 was the crime of perverting or obstructing justice,
or the due administration of the laws in violation of section 182, subdivision (a)(5). That
substantive offense includes "anything done by a person in hindering or obstructing an
officer in the performance of his official obligations." (Lorenson v. Superior Court
(1950) 35 Cal. 2d 49, 59.)
The People's theory of Charfauros's liability for counts 13 and 14 was that
Charfauros specifically agreed with Lee and Xayasene that if law enforcement officers
ever attempted to enter the apartment, they would violently resist. As alleged in the
indictment and set forth in the jury instructions, the People identified several overt acts
by Charfauros, Lee and Xayasene in support of the conspiracy, including Charfauros's
slamming and locking of the apartment door when he encountered the officers at the
door; Charfauros's statement to the officers that no weapons were present in the
apartment, which served to lead the officers into an ambush situation; and Lee and
Xayasene's subsequent shooting at the officers after the bedroom door was kicked open.
As it is beyond dispute that ample evidence supports a finding that Charfauros, Lee and
12
Xayasene committed those overt acts, the only disputed issue is whether substantial
evidence supports a finding that Lee, Xayasene and Charfauros specifically entered into a
conspiratorial agreement to violently resist if law enforcement officers came to the
apartment. We therefore turn to that issue.
Although there is no direct evidence of an agreement between Lee, Xayasene and
Charfauros to violently resist law enforcement officers, an agreement between
coconspirators may be proven through circumstantial evidence. (People v. Homick
(2012) 55 Cal. 4th 816, 870 [an agreement between coconspirators " 'must often be proved
circumstantially' "].) " 'The existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and during the
alleged conspiracy.' " (People v. Rodrigues (1994) 8 Cal. 4th 1060, 1135.) Here, the
record contains sufficient circumstantial evidence to support a finding that Lee, Xayasene
and Charfauros agreed to violently resist if law enforcement officers ever entered the
apartment.
Initially, we observe that the evidence showed that Lee, Xayasene and Charfauros
had good reason to expect that it might be necessary for them to resist law enforcement.
The evidence established that Lee and Charfauros were committing the crime of selling
methamphetamine out of the apartment, and Lee was a wanted fugitive. Charfauros, Lee
and Xayasene all knew that there was a possibility that police would enter the apartment
at some point. Specifically, Charfauros was on probation with a waiver of his Fourth
Amendment right to be free from warrantless searches of his residence, and his probation
officer had recently spoken to him on the telephone indicating that he intended to visit
13
Charfauros's residence. Further, the jury heard testimony about a recent incident at the
apartment in which Charfauros, Lee and Xayasene were concerned that police may have
been outside. With Charfauros's and Lee's awareness of the risk that police would enter
the apartment, discover their drug-related activity and take Lee into custody on his
warrant, a finder of fact reasonably could draw the inference that Lee, Xayasene and
Charfauros considered and discussed how they would respond if law enforcement
officers arrived at the apartment. Further, the fact that Lee, Xayasene and Charfauros
kept multiple firearms in the apartment is circumstantial evidence that they had decided
to respond to the risk of law enforcement arriving at the apartment by arming themselves
and making the necessary preparations to violently resist.
The strongest indication that Lee, Xayasene and Charfauros agreed to violently
resist law enforcement comes from a statement that Charfauros made to family members
in a telephone call from jail two weeks after the shooting. During that conversation,
Charfauros reiterated several times that he was "supposed to be dead with" Lee, and
stated that it was "a thin line between what I chose that day" and what could have
happened. Charfauros's statement about what was "supposed to" happen supports an
inference that Charfauros and Lee had a preconceived plan to violently resist law
enforcement officers together. Further, as the People point out, at trial the jury was
shown evidence of a large sign in Lee and Xayasene's bedroom stating, "We must protect
this house," and Charfauros repeated those words in a video found on a cell phone in the
apartment. The fact that Lee, Xayasene and Charfauros were associated with the phrase
"We must protect this house" on a sign in the apartment is further evidence of an
14
agreement to engage in violence to protect the apartment if law enforcement entered.
Also supporting a finding that Lee and Charfauros had agreed to support each other in
resisting law enforcement is the fact that Charfauros was recorded in a conversation
while in custody explaining that he "had [Lee's] back."
In addition, Charfauros's act of slamming the apartment door on the law
enforcement officers and falsely stating that there were no weapons in the apartment is
conduct consistent with an agreement to resist. A reasonable finder of fact could view
that conduct as further circumstantial evidence that Charfauros was acting according to a
preconceived plan with Lee and Xayasene to resist law enforcement officers if they
arrived at the apartment.
Charfauros contends that his attempted escape out of the window and eventual
surrender shows that that he was not acting according to a plan to violently resist.
Although that is one inference that could be drawn from those facts, it is not the only
reasonable inference. An equally valid interpretation of the facts is that because all of the
guns were in Lee and Xayasene's closed bedroom when law enforcement officers arrived,
with no firearms in Charfauros's bedroom, Charfauros did not have immediate access to
weapons for violent resistance, and thus he carried out the agreement to violently resist
by initially slamming the door on the officers and then giving them false information that
there were no guns in the apartment, which led the officers into an unexpected violent
ambush by Lee and Xayasene.
In sum, based on the circumstantial evidence, substantial evidence supports
findings that (1) Lee, Xayasene and Charfauros entered into an agreement with the intent
15
to violently resist law enforcement officers if they arrived at the apartment; and (2) Lee,
Xayasene and Charfauros engaged in several overt acts in support of that agreement.
Accordingly, substantial evidence supports the finding that Charfauros took part in a
conspiracy to resist law enforcement officers as charged in counts 13 and 14.5
b. Substantial Evidence Supports a Finding That the Assaultive Crimes
Were a Natural and Probable Consequence of the Conspiracy to
Resist, Delay or Obstruct Law Enforcement Officers
Having determined that substantial evidence supports a finding that Charfauros
took part in a conspiracy to resist law enforcement, the next issue is whether the
assaultive crimes were a natural and probable consequence of that conspiracy.
Charfauros may be found criminally liable for the natural and probable
consequences of participation in the conspiracy to resist law enforcement under the well-
established rule " 'that each member of a conspiracy is criminally responsible for the acts
of fellow conspirators committed in furtherance of, and which follow as a natural and
probable consequence of, the conspiracy, even though such acts were not intended by the
conspirators as a part of their common unlawful design.' " (People v. Guillen (2014) 227
Cal. App. 4th 934, 998.)
5 Although not discussing the argument under a separate argument heading in his
appellate brief, in the course of discussing his claim that insufficient evidence supports
his conviction for the assaultive crimes, Charfauros also asserts that his convictions for
conspiracy in counts 13 and 14 are not supported by substantial evidence and should be
reversed. We reject that argument because, as we have explained, substantial evidence
supports a finding that Charfauros took part in a conspiracy to resist, delay or obstruct
law enforcement as charged in counts 13 and 14.
16
"A nontarget offense is a 'natural and probable consequence' of the target offense
if, judged objectively, the additional offense was reasonably foreseeable." (Chiu, supra,
59 Cal.4th at p. 161, italics added.) "[T]he issue does not turn on the defendant's
subjective state of mind, but depends upon whether, under all of the circumstances
presented, a reasonable person in the defendant's position would have or should have
known that the charged offense was a reasonably foreseeable consequence . . . ." (People
v. Nguyen (1993) 21 Cal. App. 4th 518, 531 (Nguyen).) "For a criminal act to be a
'reasonably foreseeable' or a 'natural and probable' consequence of another criminal
design it is not necessary that the collateral act be specifically planned or agreed upon,
nor even that it be substantially certain to result from the commission of the planned act.
For example, murder is generally found to be a reasonably foreseeable result of a plan to
commit robbery and/or burglary despite its contingent and less than certain potential."
(Id. at p. 530.) " '[T]o be reasonably foreseeable "[t]he consequence need not have been a
strong probability; a possible consequence which might reasonably have been
contemplated is enough." ' " (People v. Medina (2009) 46 Cal. 4th 913, 920.) "A
reasonably foreseeable consequence is to be evaluated under all the factual circumstances
of the individual case . . . and is a factual issue to be resolved by the jury." (Ibid., citation
omitted.)6
6 Specifically in the context of a conspiracy as the target crime, the application of
the natural and probable consequences is limited by the principle that " ' "the act must be
the ordinary and probable effect of the wrongful act specifically agreed on, so that the
connection between them may be reasonably apparent, and not a fresh and independent
17
Here, the assaultive crimes were a reasonably foreseeable consequence of the
conspiracy to resist law enforcement officers as charged in counts 13 and 14. As we have
explained, the evidence supports a finding that Lee and Charfauros agreed to violently
resist law enforcement officers, and in furtherance of that conspiracy they took the step of
keeping several firearms in the apartment. Under any objective standard, it is reasonably
foreseeable that one of the consequences of a violent resistance to law enforcement
officers by persons armed with firearms is that law enforcement officers, including any
police dogs present, are going to be shot at and possibly injured or killed. Indeed, the
murder and attempted murder of a police officer is one of the most obvious and easily
contemplated consequences of offering violent resistance with firearms when law
enforcement officers force entry into a residence.
Charfauros contends that the natural and probable consequences doctrine does not
apply here because the underlying target offense was " 'trivial.' " For this argument,
Charfauros relies on our Supreme Court's observation that "[m]urder, for instance, is not
the 'natural and probable consequence' of 'trivial' activities. To trigger application of the
'natural and probable consequences' doctrine, there must be a close connection between
the target crime . . . and the offense actually committed." (Prettyman, supra, 14 Cal.4th
at p. 269.) According to Charfauros, the offense of conspiracy to resist law enforcement
was a trivial offense compared to the assaultive crimes, and thus there was not a
sufficiently close connection for the application of the natural and probable consequences
product of the mind of one of the confederates outside of, or foreign to, the common
design." ' " (People v. Prettyman (1996) 14 Cal. 4th 248, 260-261 (Prettyman).)
18
doctrine. We disagree. Under no reasonable interpretation can a conspiracy to violently
resist law enforcement by using firearms be considered a trivial offense; instead it is a
serious and violent offense with a close connection to the crimes of murder, attempted
murder and the serious injury to a police dog that occurred here.
Charfauros further argues that the natural and probable consequence doctrine does
not apply because "an independent intervening cause cut off any such liability."
Specifically, Charfauros contends that the police officers' decision to kick in the door was
an independent intervening cause. " 'In general, an "independent" intervening cause will
absolve a defendant of criminal liability. . . . However, in order to be "independent" the
intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence,
which rises to the level of an exonerating, superseding cause." . . . On the other hand, a
"dependent" intervening cause will not relieve the defendant of criminal liability. "A
defendant may be criminally liable for a result directly caused by his act even if there is
another contributing cause. If an intervening cause is a normal and reasonably
foreseeable result of defendant's original act the intervening act is 'dependent' and not a
superseding cause, and will not relieve defendant of liability." ' " (People v. Cervantes
(2001) 26 Cal. 4th 860, 871, citations omitted (Cervantes).)
Based on this principle, Charfauros argues that the police officers' decision to kick
in the bedroom door, putting themselves in danger of an ambush, was unreasonable and
possibly negligent in light of the officers' suspicion that an armed suspect was inside, and
therefore the police officers' actions were an independent intervening cause of the
assaultive crimes. However, in determining whether an independent intervening cause
19
absolves a defendant of criminal liability, it is not relevant whether police officers acted
reasonably and without any contributory negligence. (People v. Brady (2005) 129
Cal. App. 4th 1314, 1326 [" 'The test . . . is not whether the officers acted reasonably but
rather whether defendant realized or should have realized that the officers would respond
as they did.' "].) Instead, the " '[t]he task of the jury is to determine whether the officers'
response was so extraordinary that it was unforeseeable, unpredictable and statistically
extremely improbable.' " (Id. at p. 1327.) Here the officers' actions in response to the
situation were not " ' "unforeseeable" ' " and " ' "an extraordinary and abnormal
occurrence." ' " (Cervantes, supra, 26 Cal.4th at p. 871.) There is nothing unusual,
abnormal or extraordinary about police officers kicking in a door to a closed bedroom
when suspects refuse to come out as demanded by law enforcement. Indeed, such a
course of events is to be expected as a result of resistance to law enforcement directives
to emerge from a barricaded space.
In sum, as substantial evidence supports a finding that (1) Charfauros took part in
a conspiracy to resist law enforcement as charged in counts 13 and 14; and (2) the murder
of Officer Wilson, the attempted murder of the four other officers and the serious injury
to Monty were a natural and probable consequence of the conspiracy to resist law
enforcement, substantial evidence supports Charfauros's convictions for the assaultive
crimes under the People's first theory of criminal liability, i.e., that those crimes were the
natural and probable consequence of Charfauros's participation in a conspiracy to resist
law enforcement.
20
3. Charfauros's Criminal Liability for the Assaultive Crimes Is a Natural and
Probable Consequence of Resisting, Delaying or Obstructing a Peace
Officer as Charged in Count 16 Under an Aiding and Abetting Theory
We next discuss the substantial evidence supporting the People's second theory of
Charfauros's criminal liability for the assaultive crimes, namely that Charfauros aided and
abetted Lee and Xayasene in resisting, obstructing or delaying a peace officer (as charged
in count 16), leading to the assaultive crimes as a natural probable consequence.
a. Substantial Evidence Supports a Finding That Charfauros Aided and
Abetted Lee and Xayasene in Resisting, Delaying or Obstructing
Peace Officers as Charged in Count 16
The first question is whether the record contains substantial evidence that
Charfauros aided and abetted Lee and Xayasene in resisting, delaying or obstructing
peace officers as charged in count 16.7
" 'An aider and abettor is one who acts "with knowledge of the criminal purpose of
the perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense." ' " (People v. Smith (2014) 60 Cal. 4th 603, 611
(Smith).) " '[A] person who aids and abets the commission of a crime is a "principal" in
the crime, and thus shares the guilt of the actual perpetrator.' " (Ibid.) As opposed to the
7 We note that there is also ample evidence that Charfauros directly committed the
crime of resisting a peace officer as charged in count 16 by slamming the door and trying
to escape out of the window. However, for the purpose of establishing Charfauros's
vicarious criminal liability for the assaultive crimes, the People focused on the theory that
Charfauros aided and abetted Lee and Xayasene's resistance of a peace officer and was
therefore responsible for the natural and probable consequences of their resistance. We
therefore focus our discussion on the evidence supporting Charfauros's aiding and
abetting Lee and Xayasene's resistance of the peace officers rather than Charfauros's
direct resistance.
21
required element of an agreement to resist law enforcement in the conspiracy counts that
we have discussed above, "[a] person may aid and abet a criminal offense without having
agreed to do so prior to the act." (Nguyen, supra, 21 Cal.App.4th at p. 531.) Thus, in
determining whether substantial evidence supports Charfauros's conviction for aiding and
abetting Lee and Xayasene's resistance to the peace officers, we focus on Charfauros's
acts in support of Lee and Xayasene's resistance, without examining whether the parties
reached any prior agreement that they would help each other violently resist law
enforcement.
Here, substantial evidence supports a finding that Charfauros aided and abetted
Lee and Xayasene in resisting the police officers at the apartment with knowledge of Lee
and Xayasene's criminal purpose and with the intent to facilitate them. First, based on the
fact Charfauros opened the front door to the apartment before the officers knocked on the
door, jurors reasonably could infer that Charfauros was awake before the officers arrived
and knew that his roommates Lee and Xayasene were home. Further, because
Charfauros was present as Lee and Xayasene ignored law enforcement's repeated orders
for the occupants of the bedroom to come out, a reasonable juror could also infer that
Charfauros knew that Lee and Xayasene had decided to resist the law enforcement
officers instead of complying and being taken into custody. Next, Charfauros engaged in
conduct that specifically aided and abetted Lee and Xayasene's resistance. Specifically,
Charfauros refused to tell the officers that Lee and Xayasene were in the apartment, and
Charfauros lied about there not being any weapons in the bedroom with full knowledge
that there were actually numerous firearms in Lee and Xayasene's bedroom. Substantial
22
evidence therefore supports a finding that by providing false information to law
enforcement about the presence of weapons and refusing to confirm that Lee and
Xayasene were in the apartment, Charfauros aided and abetted Lee and Xayasene in
mounting a violent and unexpected ambush of law enforcement officers when they
kicked in the bedroom door.
b. Substantial Evidence Supports a Finding That the Assaultive Crimes
Were a Natural and Probable Consequence of Charfauros's Aiding
and Abetting Lee and Xayasene's Resistance of Peace Officers
The next issue is whether substantial evidence supports a finding that the
assaultive crimes were a natural and probable consequence of Charfauros's aiding and
abetting of Lee and Xayasene's resistance of the peace officers.
The natural and probable consequences doctrine applies to a defendant who aids
and abets another in committing a crime. "An aider and abettor is guilty not only of the
intended, or target, crime but also of any other crime a principal in the target crime
actually commits (the nontarget crime) that is a natural and probable consequence of the
target crime." (Smith, supra, 60 Cal.4th at p. 611.) As under the natural and probable
consequence doctrine as we have explained it in the context of the conspiracy claims,
"liability ' "is measured by whether a reasonable person in the defendant's position would
have or should have known that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted." ' " (Ibid., italics added.)
Here, a reasonable person in Charfauros's position should have known that a
violent gun battle resulting in the murder of Officer Wilson, the attempted murder of the
four other officers and serious injury to police dog Monty, was a reasonably foreseeable
23
consequence of Lee and Xayasene's resistance to the peace officers who were trying to
extract them from the apartment. A reasonable person in Charfauros's position, with his
knowledge that firearms were present in the apartment, would know that there was a
significant risk of a deadly gun battle as a result of Lee and Xayasene's refusal to come
out of the bedroom. As we have explained in the context of the conspiracy claims, a
reasonable person should know that police officers are likely to force entry into a room to
apprehend barricaded suspects, and that when firearms are involved, the incident may
turn violent and deadly. Therefore, substantial evidence supports a finding that the
assaultive crimes were a natural and probable consequence of Lee and Xayasene's
resistance of peace officers, which Charfauros aided and abetted.8
In sum, having concluded that at least two of the People's theories of Charfauros's
criminal liability for the assaultive crimes are supported by substantial evidence, we
reject Charfauros's challenge to the sufficiency of the evidence to support the conviction
on the assaultive crimes in counts 1 through 6.9
8 To the extent that Charfauros contends (1) that the police officers' decision to
force entry into the bedroom was an independent intervening cause of the assaultive
crimes cutting off his liability for the natural and probable consequences of his aiding and
abetting Lee and Xayasene's resistance of the peace officers, or (2) that the target crime
of aiding and abetting Lee and Xayasene's resistance of peace officers was too "trivial" to
support the application of the natural and probable consequences doctrine, those
arguments fail for the same reasons we explained in the context of the conspiracy claims
charged in counts 13 and 14.
9 As we have explained, the People also proceeded under a third theory that
Charfauros was guilty of the assaultive crimes because he directly aided and abetted Lee
and Xayasene in committing those crimes. We need not, and do not, consider whether
substantial evidence would support Charfauros's liability for the assaultive crimes on that
24
B. The Trial Court Did Not Err in Admitting Evidence of What Actions the Police
Officers Would Have Taken Had Charfauros Informed Them That Weapons Were
Present in the Apartment
We next consider Charfauros's contention that the trial court prejudicially erred in
admitting police officer testimony about the actions that they would have taken had
Charfauros been truthful about the presence of weapons in the apartment.
During trial several police officers and one deputy of the United States Marshals
Service testified that a SWAT team would have been called in to extract Lee and
Xayasene from the bedroom had Charfauros told them that there were weapons in the
apartment. Specifically, as some of the police officers testified, it is department policy to
call for a SWAT team response if officers obtain information that barricaded suspects
possess firearms.
Charfauros contends that the trial court erred in admitting this evidence because
(1) it was speculative; (2) it was irrelevant; and (3) any relevance was outweighed by the
risk of undue prejudice.
1. The Appellate Challenge to the Admission of the Evidence Is Forfeited
Because Defense Counsel Did Not Object
We first consider whether Charfauros adequately preserved these arguments by
making evidentiary objections during trial. "Evidence Code section 353, subdivision (a)
allows a judgment to be reversed because of erroneous admission of evidence only if an
objection to the evidence or a motion to strike it was 'timely made and so stated as to
make clear the specific ground of the objection.' Pursuant to this statute,
theory as well, as we have determined that substantial evidence supports Charfauros's
conviction for the assaultive crimes on two other theories.
25
' ". . . 'defendant's failure to make a timely and specific objection' on the ground asserted
on appeal makes that ground not cognizable." ' " (People v. Demetrulias (2006) 39
Cal. 4th 1, 20.) On appeal, a party "may not argue that the court should have excluded the
evidence for a reason different from his trial objection." (People v. Partida (2005) 37
Cal. 4th 428, 435.)
Defense counsel objected only during the testimony of the first witness who was
asked about what actions law enforcement would have taken had Charfauros stated that
firearms were present in the apartment. Specifically, during the testimony of Deputy
United States Marshal Michael Banez, the prosecutor asked Deputy Banez what he meant
when he told Charfauros immediately after the shooting that " 'none of this would have
happened' " if Charfauros had revealed that there were firearms in the apartment.
Defense counsel objected on relevancy grounds. The trial court did not sustain the
objection on that ground, but then interposed its own objection that the question called
for speculation, and it sustained its own objection. At a break in testimony, the
prosecutor asked the trial court to reconsider its evidentiary ruling. The trial court
explained that the question "What would you have done?" is speculative, but that the
evidence that the prosecutor sought to elicit was relevant. The trial court suggested that
although the question, as phrased, was speculative, "there may be alternate ways" to ask
the question.
During the prosecutor's continued examination of Deputy Banez, the prosecutor
returned to the issue but asked the question in a different way, inquiring why Deputy
Banez told Charfauros that " 'none of this would have happened' " if Charfauros had
26
revealed there were firearms in the apartment. Defense counsel objected on relevancy
grounds, and the trial court overruled the objection. At no point did defense counsel
interpose an objection on the ground that the question called for speculation. Deputy
Banez replied that he made the statement because "the callout would have been
different[]. It would have ended differently" if Charfauros told him guns were in the
apartment. The prosecutor then followed up by asking "how" it would have ended
differently. Defense counsel did not object, and Deputy Banez explained that he would
have called for SWAT team assistance.
Following Deputy Banez's testimony, six police officers testified — sometimes at
significant length — that they would have called for a SWAT team response had they
obtained information that weapons were present in the apartment. The prosecutor's
questions that elicited the officers' testimony generally inquired what the officers would
have done differently had Charfauros told them that firearms were present. Defense
counsel made no objection to any of the testimony.
Charfauros acknowledges that he did not object to the six officers' testimony about
what they would have done differently had they known that firearms were present.
However, he contends that he has not forfeited his appellate challenge to the admission of
that evidence because he made objections to the testimony of Deputy Banez on that same
subject, and the objection was sustained, making any further objection futile. We
disagree. "It has long been the rule that '[where] a party has once formally taken
exception to a certain line or character of evidence, he is not required to renew the
objection at each recurrence thereafter of the objectionable matter arising at each
27
examination of other witnesses; and his silence will not debar him from having the
exception reviewed.' " (People v. Antick (1975) 15 Cal. 3d 79, 95.) However, defense
counsel's objection to the prosecutor's question about why Deputy Banez told Charfauros
that " 'none of this would have happened' " if Charfauros had revealed there were
firearms in the apartment is not an objection to the same line of questioning or the same
evidence implicated by the police officers' testimony. The police officers were not asked
why Deputy Banez stated that " 'none of this would have happened' " if they knew
firearms were present, or even whether they agreed with that statement by Deputy Banez.
Instead, the officers were asked what they would have done differently if Charfauros had
told them there were firearms in the apartment. Indeed, when a similar question was
asked of Deputy Banez, inquiring how things would have turned out differently if he
knew firearms were present, defense counsel did not object.
In sum, as the only objection made by defense counsel was to a question about
why Deputy Banez made a particular statement to Charfauros, and defense counsel never
objected to the questioning of any witness, even Deputy Banez, about how officers would
have proceeded differently had Charfauros revealed that firearms were present,
Charfauros has not preserved an appellate argument that the evidence about what police
officers would have done differently was improperly admitted.
Further, the only objection that defense counsel interposed during the relevant
portion of Deputy Banez's testimony was based on relevancy. Defense counsel made no
objection that the evidence was unduly speculative or should be excluded because its
prejudicial nature outweighed its relevance under Evidence Code section 352. The lack
28
of any objection on the basis of speculation or Evidence Code section 352, even during
Deputy Banez's testimony, provides an additional basis for our conclusion that
Charfauros has forfeited his appellate challenge that the evidence should have been
excluded on those grounds.
2. Charfauros Has Not Established That Defense Counsel Was Ineffective
Charfauros argues that in the event we conclude that he has forfeited his appellate
challenge to the admission of the evidence about what the police officers would have
done differently had they known that firearms were present, his conviction should be
reversed on the ground that he received ineffective assistance of counsel because defense
counsel failed to object to the admission of the evidence.
"Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel." (People v. Ledesma (1987) 43 Cal. 3d 171, 215.) A defendant
claiming ineffective assistance of counsel has the burden to show: (1) counsel's
performance was deficient, falling below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance resulted in prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, at pp. 216,
218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." (Strickland, at p. 694.) Further "[r]eviewing courts reverse convictions on
direct appeal on the ground of incompetence of counsel only if the record on appeal
29
demonstrates there could be no rational tactical purpose for counsel's omissions."
(People v. Lucas (1995) 12 Cal. 4th 415, 442; see People v. Anderson (2001) 25 Cal. 4th
543, 569.) "The decision whether to object to the admission of evidence is 'inherently
tactical,' and a failure to object will rarely reflect deficient performance by counsel."
(People v. Castaneda (2011) 51 Cal. 4th 1292, 1335.)
As we will explain, Charfauros has not established that defense counsel performed
below the standard of care by failing to object to questions about what the police officers
would have done differently had they known that firearms were present, as defense
counsel could reasonably have determined that the questions were not objectionable.
Further, because the questions were not objectionable, Charfauros cannot establish that
he was prejudiced by defense counsel's failure to object.
Charfauros's first contention is that defense counsel should have objected on the
ground of relevancy to the questions about what the police officers would have done
differently had Charfauros revealed that firearms were present in the apartment.
However, evidence of how the police officers would have reacted had Charfauros
revealed that weapons were present was centrally relevant to a main issue in the case.
Specifically, as we have described, one of the People's central theories of Charfauros's
criminal liability for the assaultive crimes was that those crimes were a natural and
probable consequence of Charfauros's participation in Lee and Xayasene's resistance of
the law enforcement officers, either as part of a conspiracy or as an aider and abettor. For
his part in that resistance, Charfauros made false statements to law enforcement that no
weapons were present in the apartment. Evidence that the police officers would not have
30
kicked in the bedroom door had Charfauros revealed the presence of weapons was highly
relevant to establishing that, as a natural and probable consequence of Charfauros's
actions, the police officers kicked in the bedroom door rather than calling in a SWAT
team, leading to the assaultive crimes, including the murder of Officer Wilson and the
serious injury to Monty.
Charfauros puts misplaced reliance on People v. Schmies (1996) 44 Cal. App. 4th
38, 55-56, to support his argument that it was irrelevant whether the officers would have
done anything differently had they known there were firearms in the apartment. Schmies
held that in applying the natural and probable consequences doctrine, it is irrelevant
whether police officers violated a departmental policy through their actions, as the issue
is "not whether the officers acted reasonably but rather whether defendant realized or
should have realized that the officers would respond as they did." (Id. at p. 55.) Here,
however, questions about what the officers would have done differently had they known
there were firearms in the apartment were not directed at eliciting testimony about a
failure to follow police department policy. On the contrary, the officers explained that
they would have taken a different course of action, in accordance with established policy,
had Charfauros told them the truth about the firearms. Accordingly, Schmies is not
applicable.
Charfauros's second contention is that defense counsel should have objected that
the prosecutor's questions to the police officers called for speculation, in that the officers
were required to speculate about what they would have done differently had Charfauros
revealed there were weapons in the apartment. (See People v. Babbitt (1988) 45 Cal. 3d
31
660, 682 [evidence may be excluded as irrelevant when it produces only speculative
inferences regarding a disputed fact]; People v. Gonzales (2012) 54 Cal. 4th 1234, 1260
[" 'Speculative inferences are, of course, irrelevant.' "].) The objection would have lacked
merit had defense counsel made it. As the content of the officers' responses shows, the
officers did not infer what they would have done differently based on speculation.
Instead, as a sound basis for their testimony the officers described a departmental policy
which requires that a SWAT team be called in when barricaded suspects are known to
have firearms.
Charfauros's final contention is that defense counsel should have objected to the
testimony about what the officers would have done differently on the ground that
admission was barred under Evidence Code section 352. Pursuant to Evidence Code
section 352, "[a] trial court may exclude otherwise relevant evidence when its probative
value is substantially outweighed by concerns of undue prejudice, confusion, or
consumption of time." (People v. Scott (2011) 52 Cal. 4th 452, 490.) " ' "The 'prejudice'
referred to in Evidence Code section 352 applies to evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual and which has very little
effect on the issues. In applying section 352, 'prejudicial' is not synonymous with
'damaging.' " ' " (Id. at p. 491.) Here, as we have explained, the evidence had substantial
probative value, as it was relevant to establish Charfauros's criminal liability under the
natural and probable consequences doctrine. Further, Charfauros has not identified any
undue prejudice within the meaning of Evidence Code section 352. Although testimony
that the police officers would have called in a SWAT team might be damaging to
32
Charfauros's defense because it supports the People's case on the natural and probable
consequences doctrine, it is not the type of evidence likely to evoke an emotional bias
against Charfauros.
In sum, because the objections that Charfauros contends defense counsel should
have made were without merit and were unlikely to have been sustained, Charfauros has
not met his burden of establishing that defense counsel's performance was deficient or
that he was prejudiced by defense counsel's failure to object. We accordingly reject
Charfauros's claim of ineffective assistance of counsel based on defense counsel's failure
to object to the officers' testimony.
C. Charfauros's Challenge to the Enhanced Sentence for the Attempted Murder
Counts on the Ground That the Indictment Did Not Allege That the Attempted
Murders Were Willful, Deliberate and Premeditated
We next consider Charfauros's contention that because the indictment did not
allege that the attempted murders of the four police officers were willful, deliberate and
premeditated, the enhanced 15-year-to-life sentences for those counts violated
Charfauros's statutory and due process rights.
1. Background
In counts 2 through 5, Charfauros was charged with the attempted murder of
Officers McLeod, Chinn, Whipple and Ruiz. The indictment alleged that Charfauros was
criminally liable under section 664, subdivision (e), which provides that "if attempted
murder is committed upon a peace officer . . . and the person who commits the offense
knows or reasonably should know that the victim is a peace officer . . . , the person guilty
33
of the attempt shall be punished by imprisonment in the state prison for life with the
possibility of parole." (§ 664, subd. (e).)
Section 664, subdivision (f) provides for an enhanced sentence when a defendant
is found guilty of attempting to murder a peace officer, "and it is also charged and
admitted or found to be true by the trier of fact that the attempted murder was willful,
deliberate, and premeditated." (§ 664, subd. (f).) If that finding is made, "the person
guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to
life" and "shall not be released prior to serving 15 years' confinement." (Ibid.) Here, the
indictment did not allege that the attempted murders were willful, deliberate and
premeditated and did not identify section 664, subdivision (f) as a provision included in
the charges against Charfauros. Nevertheless, the jury was instructed that it should
determine whether the attempted murders were willful, deliberate and premeditated. The
jury returned specific verdicts finding that the attempted murders in counts 2 through 5
were willful, deliberate and premeditated. The trial court relied on those findings to
sentence Charfauros according to the enhanced sentence in section 664, subdivision (f)
on counts 2 through 5, imposing sentences of 15 years to life for each of those four
counts.
2. Charfauros's Due Process Argument Lacks Merit and His Statutory
Argument Has Been Forfeited
Charfauros contends that the sentence of 15 years to life on counts 2 through 5
must be reversed because the indictment did not provide him with notice that he was
being charged with committing willful, deliberate and premeditated attempted murders.
34
There are two separate issues raised when an enhanced sentence is imposed on a
defendant according to a finding that he committed a willful, deliberate and premeditated
attempted murder of a peace officer in a circumstance, like here, where the accusatory
pleading does not allege a willful, deliberate and premeditated attempted murder.
The first issue is whether the defendant has been sentenced in violation of
section 664, subdivision (f) because the statute requires that the defendant be charged
with a willful, deliberate and premeditated attempted murder as required by the statute
before an enhanced sentence may be imposed. (§ 664, subd. (f) [stating that the enhanced
sentence shall be imposed "if . . . it is . . . charged and admitted or found true" that the
attempted murder was willful, deliberate and premeditated].) The second issue is
whether the defendant's due process rights have been violated by not receiving notice in
the accusatory pleading that the People were seeking an enhanced sentence based on
allegations the attempted murder was willful, deliberate and premeditated. The due
process issue arises because "[a] defendant has a due process right to fair notice of the
allegations that will be invoked to increase the punishment for his or her crimes."
(People v. Houston (2012) 54 Cal. 4th 1186, 1227 (Houston).)
Here, as to the statutory issue, it is undisputed that the indictment did not comply
with the requirements of section 664, subdivision (f) because it was not "charged . . . that
35
the attempted murder was willful, deliberate, and premeditated." (§ 664, subd. (f), italics
added.)10
The due process issue is more complicated and requires us to focus on the
applicable legal principles and case law. "The 'preeminent' due process principle is that
one accused of a crime must be 'informed of the nature and cause of the accusation.'
(U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the
charges against him so that he has a reasonable opportunity to prepare and present his
defense and not be taken by surprise by evidence offered at his trial." (People v. Jones
(1990) 51 Cal. 3d 294, 317 (Jones).)
The most applicable case considering due process issues in a similar context is our
Supreme Court's decision in Houston, supra, 54 Cal. 4th 1186. Houston concerned the
sentence enhancement in section 664, subdivision (a), which provides for an
indeterminate life term, rather than a determinate term of five, seven or nine years, when
the defendant has been charged with and found guilty of willful, deliberate and
premeditated attempted murder.11
10 As we will explain after discussing the due process issue, because he did not raise
the issue in the trial court, Charfauros has forfeited his right to any appellate remedy
based on the fact that the indictment did not allege that the attempted murders were
willful, deliberate and premeditated.
11 Here, Charfauros was charged with the attempted murder of peace officers.
Therefore, section 664, subdivision (f), rather than section 664, subdivision (a), sets forth
the enhancement applicable for an attempted murder that is willful, deliberate and
premeditated.
36
In Houston, supra, 54 Cal. 4th 1186, our Supreme Court concluded that although
the accusatory pleading did not allege that the attempted murders were willful, deliberate
and premeditated, the defendant received constitutionally adequate notice of those
allegations. Specifically, during trial, while evidence was still being presented, the trial
court in Houston explained to the defendant that the verdict forms would include specific
findings for premeditated attempted murder, informed the defendant that he would be
sentenced to life in prison if convicted, and asked the parties to comment on any
problems with the proposed jury instructions and verdict forms. (Id. at p. 1227.) Under
those circumstances, Houston concluded that the "defendant received adequate notice of
the sentence he faced" even though the indictment did not allege that the attempted
murders were willful, deliberate and premeditated. (Id. at p. 1228.)
Here, the situation is similar to Houston. The record shows that Charfauros was
on notice during the course of the trial that the jury would be instructed to decide whether
the attempted murders were willful, deliberate and premeditated. Specifically, during
trial while evidence was still being presented in the People's case, counsel discussed
proposed jury instructions with the trial court. One of instructions was CALCRIM
No. 601, which informed the jurors that if they found Charfauros guilty of the attempted
murders, they must also determine whether the attempted murders were willful,
deliberate and premeditated. Defense counsel introduced the discussion of CALCRIM
No. 601 by informing the trial court he was the one who "proffered" the instruction. The
prosecutor responded by stating that he had "no objection to proffering a [section] 189
37
verdict form, and therefore, the appropriate instruction."12 Counsel and the trial court
then briefly discussed the People's theory that the jury could find the attempted murders
to be willful, deliberate and premeditated "if the defendant, a co-conspirator or a
participant . . . acts with" the required state of mind. Charfauros was in the courtroom
when the discussion took place.
After three more days of testimony the People rested, the defense declined to
present any testimony, and the jury was instructed, without objection, according to
CALCRIM No. 601. The jury returned a specific finding that the attempted murders
were willful, deliberate and premeditated, and at sentencing the probation officer's
sentencing report stated that, based on that finding, section 664, subdivision (f) required
that Charfauros be sentenced to terms of 15 years to life for each attempted murder count.
Without objection from defense counsel, the trial court followed that recommendation
and sentenced Charfauros to four consecutive terms of 15 years to life for the four
attempted murder counts.
Under the circumstances, because the defense proffered the CALCRIM No. 601
instruction on willful, deliberate and premeditated attempted murder, Charfauros had
notice that the jury was going to be deciding that issue. Further, because the instruction
was discussed while there were still several days of trial remaining and the People had
12 Section 189 defines first degree murder as including, among other things, a
"willful, deliberate, and premeditated killing." (Ibid.) Therefore in referring to a
"[section] 189 verdict form" in the context of discussing the CALCRIM No. 601
instruction, the prosecutor was apparently referring to a verdict form asking the jury to
decide whether the attempted murders were willful, deliberate and premeditated.
38
not yet rested their case, there was a meaningful opportunity for Charfauros to introduce
evidence on the issue of whether the attempted murders were willful, deliberate and
premeditated. Charfauros thus had a "reasonable opportunity to prepare and present his
defense," foreclosing any argument that his constitutional due process rights were
violated due to the fact that the indictment did not charge that the attempted murders
were willful, deliberate and premeditated. (Jones, supra, 51 Cal.3d at p. 317.)
Having concluded (1) that the requirements of section 664, subdivision (f) were
not satisfied because the indictment did not charge that the attempted murders were
willful, deliberate and premeditated; but (2) Charfauros nevertheless received
constitutionally adequate notice that the People were alleging that the murders were
willful, deliberate and premeditated for the purposes of the sentence enhancement in
section 664, subdivision (f), we next consider whether Charfauros is entitled to any relief
on appeal. As we will explain, we conclude that Charfauros has forfeited any appellate
challenge to the sentence enhancements on statutory grounds because he did not object in
the trial court that the indictment lacked an allegation that the attempted murders were
willful, deliberate and premeditated.
Our analysis of the forfeiture issue is controlled by Houston. In that case, our
Supreme Court concluded that because the defendant had failed to object to instructing
the jury on a theory that the attempted murders were willful, deliberate and premeditated,
the defendant had forfeited any appellate challenge to the imposition of a sentence
enhancement under section 664 based on the argument that the indictment did not allege
the attempted murders were willful, deliberate and premeditated. (Houston, supra, 54
39
Cal.4th at pp. 1227-1228.) As Houston pointed out, the defendant received adequate
notice of the sentence he faced, and "a timely objection to the adequacy of the indictment
would have provided an opportunity to craft an appropriate remedy." (Id. at p. 1228.)
Accordingly, he forfeited his appellate challenge to the sentence enhancement based on
section 664. The same result applies here. As we have explained, Charfauros received
notice of the allegations that the attempted murders were willful, deliberate and
premeditated while there was still time to craft a remedy in the trial court. However,
Charfauros did not object, and he accordingly forfeited his appellate challenge based on
the People's failure to comply with the statutory requirement in section 664,
subdivision (f) that the indictment allege that the attempted murders were willful,
deliberate and premeditated.
3. Charfauros Has Not Established Ineffective Assistance of Counsel Based
on Defense Counsel's Lack of Objection to the Contents of the Indictment
Charfauros contends that in the event we find forfeiture, he is nevertheless entitled
to relief on the ground that defense counsel was ineffective for failing to object that the
indictment lacked allegations that the attempted murders were willful, deliberate and
premeditated.
As we have explained, a claim for ineffective assistance of counsel has two parts:
deficient performance by counsel and prejudice to the defendant. (Strickland, supra, 466
U.S. at p. 687.) "If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice that course should be followed." (Id. at p. 697.) As we will
explain, because our analysis of the prejudice issue is dispositive, we need only reach that
40
issue to dispose of Charfauros's claim that defense counsel was ineffective for not
objecting that the indictment failed to comply with section 664, subdivision (f) in that it
did not allege that the attempted murders were willful, deliberate and premeditated.
To establish prejudice, Charfauros has the burden to show "a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." (Strickland, supra, 466 U.S. at p. 694.) Here, the question
of prejudice must focus on the time period during trial when defense counsel was aware
that the People were proceeding under a theory that the attempted murders were willful,
deliberate and premeditated, at which point he could have made an objection that the
theory was barred because the indictment did not comply with section 664,
subdivision (f). That point during the trial was no later than the day when counsel
discussed CALCRIM No. 601 with the trial court. It is unlikely that an objection at that
point would have made a difference to the outcome of the trial. If defense counsel raised
an objection at that point based on the fact that the indictment did not allege that the
attempted murders were willful, deliberate and premeditated, the People would likely
have requested that the trial court permit an amendment to the indictment to allege
premeditation. (§ 1009 [trial court may permit an amendment of an indictment at any
stage of the proceedings]; Orlina v. Superior Court (1999) 73 Cal. App. 4th 258, 264
[rejecting the argument that a grand jury indictment cannot be amended by a trial court].)
As there would have been ample time left during trial for defense counsel to put
on any additional evidence necessary to address the formal premeditation allegations,
defense counsel would not have had a strong argument to defeat an amendment to
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indictment, and the trial court undoubtedly would have permitted it. Indeed, as our
Supreme Court noted in Houston, one reason for finding forfeiture in the context of
defendant's failure to object to the absence of allegations of premeditation in the
indictment charging attempted murder is that upon a timely objection by defense counsel,
the prosecutor could have asked the trial court to amend the indictment and cure the
problem. (Houston, supra, 54 Cal.4th at pp. 1227-1228.)
In sum, even had defense counsel objected, there is no reasonable probability that
Charfauros would have obtained any different outcome, and he still would have been
sentenced to an enhanced 15-year-to-life term under section 664, subdivision (f) for each
of the attempted murders.
D. Error in Imposing Full Terms Rather Than One-third of the Middle Term for
Counts 7, 9, 10, 11, 12, 13 and 14
For the determinate sentences on counts 7, 9, 10, 11, 12 and 14 the trial court
imposed full-term sentences, which it ordered to be served consecutively but stayed
pursuant to section 654. Charfauros contends that pursuant to section 1170.1, subdivision
(a), the trial court should have imposed one-third of the middle term sentence for
counts 7, 9, 10, 11, 12 and 14, and he seeks an order amending the abstract of judgment
accordingly. The Attorney General concedes that the trial court erred and that the
abstract of judgment should be amended. As we will explain, the parties' position has
merit, and we will accordingly order the relief that Charfauros seeks.
When sentencing for the counts punished by determinate terms, the trial court
selected count 15 as the principal term and imposed a full-term sentence of three years
42
for that count. Counts 6, 7, 9, 10, 11, 12, 13 and 14 were sentenced as subordinate terms.
Pursuant to section 1170.1, subdivision (a), consecutive subordinate determinate terms
"shall consist of one-third of the middle term of imprisonment prescribed" for those
crimes and "one-third of the term imposed for any specific enhancements applicable to
those . . . offenses." However, the trial court did not follow that provision for counts 7, 9,
10, 11, 12 and 14. Instead, for those counts, the trial court imposed and stayed the full
middle-term sentences for each of those counts, including full-term enhancements.13
As the trial court did not sentence counts 7, 9, 10, 11, 12 and 14 according to the
requirement that it impose one-third of the middle term for each count and one-third of
any applicable enhancement, the sentences for those counts are unauthorized. An
appellate court may correct an unauthorized sentence when the error is brought to its
attention. (People v. Valenzuela (2009) 172 Cal. App. 4th 1246, 1249 (Valenzuela);
People v. Dotson (1997) 16 Cal. 4th 547, 554, fn. 6.) We accordingly order that the trial
court correct the abstract of judgment to reflect the imposition of one-third of the middle
term for counts 7, 9, 10, 11, 12 and 14, and one-third of any applicable enhancement for
those counts, all of which shall be stayed under section 654. So corrected, the stayed
sentences for those counts shall be as follows: count 7 — one year; count 9 — eight
13 Specifically, the following consecutive terms were imposed and stayed for the
applicable counts: count 7 — three years; count 9 — two years, plus a one-year
enhancement; count 10 — two years; count 11 — 2 years; count 12 — two years, plus a
one-year enhancement; and count 14 — two years, plus a one-year enhancement. The
trial court imposed sentences for counts 6 and 13 based on one-third of the middle term,
and those counts are accordingly not the subject of Charfauros's appeal.
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months, plus a four-month enhancement; count 10 — eight months; count 11 — eight
months; count 12 — eight months, plus a four-month enhancement; count 14 — eight
months, plus a four-month enhancement.
E. Error in the Amount of the Laboratory Fee Imposed Under Health and Safety
Code Section 11372.5, Subdivision (a)
Charfauros's final contention is that the trial court erred in the amount of the
laboratory fee that it imposed pursuant to Health and Safety Code section 11372.5,
subdivision (a), because it imposed a fee of $205 instead of $100. The Attorney General
concedes the error.
Health and Safety Code section 11372.5, subdivision (a) provides that for certain
enumerated crimes, the defendant shall pay a criminal laboratory analysis fee of $50 for
each separate offense. Here, Charfauros committed the enumerated crimes of
(1) possessing a controlled substance for sale (id., § 11378 [count 9]); and (2) selling or
furnishing a controlled substance (id., § 11379 [pursuant to the conspiracy charged in
count 15]). Because each specific enumerated offense incurs a fee of $50, the trial court
should have imposed a total fee of $100. Instead, the trial court imposed a fine of
$205.14
Under our authority to correct unauthorized sentences, we may order that an
improperly calculated fine be modified and corrected. (Valenzuela, supra, 172
14 In imposing the $205 laboratory fee, the trial court stated that it was in the amount
of "$205, including penalty assessments." Neither Charfauros nor the Attorney General
identify a basis for an additional "penalty assessment," and in light of the Attorney
General's concession that the amount of $205 was imposed in error, we conclude that no
basis in the record has been identified for the assessment of a laboratory fee above $100.
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Cal.App.4th at p. 1249.) We accordingly order that the laboratory fee imposed pursuant
to Health and Safety Code section 11372.5, subdivision (a) be modified to the amount of
$100.
DISPOSITION
The trial court is ordered (1) to modify the abstract of judgment to reflect (a) the
imposition of one-third of the middle term and one-third of any applicable enhancement
for counts 7, 9, 10, 11, 12 and 14; and (b) the imposition of a laboratory fee of $100
pursuant to Health and Safety Code section 11372.5, subdivision (a); and (2) to forward
an amended copy of the asbtract of judgment to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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