DocketNumber: B117926
Citation Numbers: 87 Cal. Rptr. 2d 803, 74 Cal. App. 4th 243, 99 Daily Journal DAR 8469, 99 Cal. Daily Op. Serv. 6670, 1999 Cal. App. LEXIS 757
Judges: Nott, Boren
Filed Date: 8/17/1999
Status: Precedential
Modified Date: 10/19/2024
Opinion
Michael Baker, Christopher Paonessa, and Dino Riggio appeal from judgments entered against them following their convictions by jury verdict in the murder of Jason Shaw and the attempted murder of Danny Parkison. Baker was convicted of murder (count I), attempted murder (count II), conspiracy to commit assault with a deadly weapon (count V), and residential burglary (count VI). The jury found that the murder and burglary were in the first degree, that the allegations of personal use of a knife (counts I and II) and infliction of great bodily injury (count II) were true, and that the attempted murder was willful, deliberate, and premeditated. Paonessa was found guilty of the same counts. The jury found that the murder and the burglary were in the first degree, that the allegations of personal use of a knife (count II) and infliction of great bodily injury (count H) were true, and that the attempted murder was willful, deliberate, and premeditated. The jury found Riggio guilty of counts I, V, and VI, as well as assault with a deadly weapon (count IV). The jury found the murder to be in the second degree and the burglary in the first degree.
All three appellants raise instructional error. They contend that an erroneous jury instruction misstated the felony-murder rule and that the trial court
Procedural and Factual Background
Appellants were charged in a six-count indictment with murder (count I), attempted murder (count II), assault with a deadly weapon (count IV), conspiracy to commit assault with a deadly weapon (count V), and residential burglary (count VI). Five other defendants were also named in the indictment. They were not tried with appellants and are not parties to this appeal. Count III applied only to one of the five codefendants. The indictment alleged that Baker personally used a knife (counts I and II) and personally inflicted great bodily injury (counts II and IV). It alleged that Paonessa personally used a knife (counts II and IV). Appellants pleaded not guilty.
Following their convictions, Baker was sentenced to state prison for consecutive terms of twenty-five years to life (count I), life with the possibility of parole (count II), one year for personal use of a knife (count I), and three years for infliction of great bodily injury (count II). The court imposed and stayed one year for personal use of a knife (count II), three years (count V) , and four years (count VI). Paonessa was sentenced to consecutive terms of 25 years to Ufe (count I), life with the possibility of parole (count II), and 3 years for infliction of great bodily injury (count II). The court imposed but stayed one year for knife use (count II), three years (count V), and four years (count VI). Riggio was sentenced to state prison for 15 years to life (count I). The court imposed, but stayed three years (count V) and four years (count VI) .
The evidence, viewed in the light most favorable to the judgment, shows the following. Jason Shaw and his roommates held a party on March 1, 1997. Baker arrived at the party and refused to pay the admission charge. He was nevertheless allowed to attend. Baker later argued with Shaw and grabbed him by the throat, however, and Shaw asked Baker to leave. Some of the other partygoers then beat Baker, giving him a black eye. Baker discovered that his pager was missing and left Shaw’s home after threatening revenge.
Discussion
I. Instructions regarding felony murder
Baker and Paonessa contend that the instruction presented to the jury on the theory of conspiracy felony murder was legally insufficient. They urge that conspiracy felony murder applies only to conspiracies to commit the offenses listed in section 189 of the Penal Code,
The trial court instructed the jury with CALJIC No. 8.26 as follows: “If a number of persons conspire together to commit assault with a deadly weapon or by means of force likely to produce great bodily injury, and if the life of another person is taken by one or more of them in furtherance of the common design, and if the killing is done to further that common purpose or is an ordinary and probable result of the pursuit of that purpose, all of the co-conspirators are equally guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.” The jury was also instructed on first degree murder based upon premeditation, second degree murder, aiding and abetting, and conspiracy.
The prosecution stated during closing argument, “The second way we arrive at murder in our case is via the conspiracy theory. ... [¶] Now, under this theory of murder, ladies and gentlemen, there’s no requirement of malice or any intent to kill. The only intent required, again, is the intent to commit the assault. . . . [¶] And I can’t repeat that enough. Doesn’t mean they had to intend to kill anyone. Doesn’t matter who actually did the stabbing. [¶] So as you can see, both under the first theory [premeditated murder] I discussed with you, and under the conspiracy murder theory we have arrived at first-degree murder.”
The felony-murder rule imputes the requisite malice for a second degree murder conviction to those who commit a homicide during the perpetration of a felony which is not an enumerated felony, but is one inherently dangerous to human life. Assuming conspiracy to commit assault with a deadly weapon is a felony inherently dangerous to human life, the felony-murder rule would at most support a finding of second degree murder in the present case. (See People v. Flores (1992) 7 Cal.App.4th 1350, 1362 [9 Cal.Rptr.2d 754] [court instructed on conspiracy felony murder based on assault with a deadly weapon; appellate court found nonprejudicial error under People v. Ireland, supra, 70 Cal.2d at p. 538].)
People v. Maciel (1987) 199 Cal.App.3d 1042 [248 Cal.Rptr. 883] and People v. Luparello (1986) 187 Cal.App.3d 410 [231 Cal.Rptr. 832], relied upon by respondent, are distinguishable. In each case, the jury found that the murder was committed as a result of one or more conspirators having lain in wait. Under section 189, such a circumstance equates the crime to first degree murder as to the perpetrator. Therefore, pursuant to section 182, both defendant Maciel and defendant Luparello were liable to the same extent and degree as their respective coconspirators.
To the extent Maciel or Luparello may be read to elevate any death arising from a conspiracy to commit an assault with a deadly weapon into the
Accordingly, the only way a conspiracy to commit an assault with a deadly weapon may result in a first degree murder is if a conspirator is guilty of first degree murder as set forth in section 189. In the present case, the murder was not committed by use of an explosive device, armor-piercing ammunition, poison, lying in wait, or torture. Nor was it committed in the course of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, various sex crimes, or shooting from a vehicle.
The instruction given in this case faces a second legal hurdle. The effect of the instruction was to relieve the jury of the necessity of finding malice aforethought if it found that the homicide was a direct result of the commission of a conspiracy to commit assault with a dangerous weapon. (See People v. Ireland, supra, 70 Cal.2d at p. 538.) In People v. Ireland, our Supreme Court held that a felony-murder theory cannot be based upon a felony which is an integral part of the homicide, in that case assault with a dangerous weapon and second degree murder, because such a theory would preclude the jury from considering malice aforethought in all cases where the homicide has been committed as a result of a felonious assault. There, the defendant was also the perpetrator, and no conspiracy was alleged. In People v. Hansen (1994) 9 Cal.4th 300, 315 [36 Cal.Rptr.2d 609, 885 P.2d 1022], our Supreme Court rejected the “integral part of the homicide” test, and replaced it with a test which focuses upon whether the use of the underlying inherently dangerous felony as a predicate felony will elevate all felonious assaults to murder or otherwise subvert the legislative intent. It found that use of willful discharge of a firearm at an inhabited dwelling as a predicate felony for second degree felony murder did not subvert the legislative intent to provide a gradation of homicide offenses based upon the existence of malice.
Where, as here, a conspiracy to commit an assault with a deadly weapon is the target offense of the felony-murder instruction, the same logic applies. The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (People v. Wilson, supra, 1 Cal.3d at p. 440.) A person who enters a conspiracy to commit assault with a deadly weapon, like the person who enters a building with an intent to assault his victim with a deadly weapon, is not deterred by the felony-murder rule. We conclude that on this ground, as well, the court erred in applying the felony-murder rule to a conspiracy to commit assault with a deadly weapon.
II. Lesser included offenses
Appellants raise several issues regarding instructions, based upon the underlying notion that the jury should have been given the opportunity to decide whether appellants agreed to and entered Shaw’s home with the intent to engage in a fistfight, that is, a simple assault, rather than assault with a deadly weapon or by means of force likely to cause great bodily injury. Appellants urge that the court should have instructed on lesser included offenses of voluntary manslaughter, conspiracy to commit assault, and assault. Simple assault is a misdemeanor, aggravated assault a felony. (See §§ 241, subd. (a), 245, subd. (a)(1).) Thus, the jury could have found that appellants’ intent upon entering Shaw’s home was not felonious. There was evidence from which a rational jury could conclude that Baker, an acquaintance of Shaw’s, returned to Shaw’s home to retrieve his pager and at most to engage in a fistfight. If Shaw so believed, then his use of force could be considered excessive, entitling Baker to defend himself. (See People v. Loustaunau (1986) 181 Cal.App.3d 163, 171 [226 Cal.Rptr. 216]; People v. Gleghorn (1987) 193 Cal.App.3d 196, 201 [238 Cal.Rptr. 82].)
The jury was instructed on first degree murder (CALJIC No. 8.20), second degree murder (CALJIC No. 8.30), attempted murder (CALJIC Nos. 8.66,
A trial court must instruct sua sponte on all lesser included offenses which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) It must instruct on defenses which are supported by the evidence and which are not inconsistent with the defendant’s theory of the case. (See People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rptr.2d 569, 906 P.2d 531].) Substantial evidence exists where there is evidence from which a jury composed of reasonable persons could conclude that the defendant was guilty of the lesser crime. (People v. Breverman, supra, at pp. 162-164.) When assessing the sufficiency of evidence to warrant an instruction, we do not evaluate the credibility of witnesses, a task for the jury. (Ibid.)
Evidence regarding appellants’ intent was conflicting. Although the trial court’s view of the evidence was amply supported, there was also evidence from which a rational jury could conclude that appellants went to Shaw’s home, where the party was still in progress, intending only to retrieve Baker’s pager and perhaps to engage in a fistfight. Testimony was introduced tending to show that Baker, Paonessa, and Riggio, with others, entered into an agreement to go to Shaw’s house to retrieve Baker’s pager, which had been lost or taken during the first scuffle at Shaw’s house, and to “kick ass” and “jump ’em.” Those colloquialisms may be interpreted as
The failure to instruct had far-ranging ramifications, including influencing whether the killing and knifing were reasonable and natural consequences of the target offense of the conspiracy and whether there should be vicarious liability for the more serious crime. The error thus implicated the convictions of attempted murder, assault with a deadly weapon or by means of force likely to cause great bodily injury, conspiracy to commit assault with a deadly weapon or by means of force likely to cause great bodily injury, and residential burglary. (See People v. Godinez (1992) 2 Cal.App.4th 492, 504 [3 Cal.Rptr.2d 325] [error for court to instruct jury that homicide is a reasonable and natural consequence of a gang attack].) The error was magnified by the prosecution’s closing argument, which emphasized that the attack on Shaw was unprovoked and unjustified.
III. Prejudicial error
If an erroneous instruction would permit the jury to convict based on a factually insufficient scenario, a reviewing court will reverse the conviction unless, from the jury’s findings, it can determine beyond a reasonable doubt the jury did not in fact rely on the erroneous instruction and factually deficient scenario. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1034 [68 Cal.Rptr.2d 655, 945 P.2d 1204].) In the present case, the felony-murder instruction given would permit the jury to convict the defendants of first degree murder without finding that any of them had the requisite malice aforethought for first degree murder. It thus requires reversal unless it appears from the record beyond a reasonable doubt the jury did not rely on the erroneous instruction.
The record does not support such a conclusion. The prosecution urged the jury that it could find first degree murder based solely on the conspiracy to commit assault with a dangerous weapon. During deliberations, the jury asked the court, “If a number of persons conspire ... all of the co-conspirators are equally guilty of murder of the first degree, whether the
The jury may well have relied upon the felony-murder conspiracy instruction in convicting Baker and Paonessa. Although it could have found premeditated murder as to Baker, who it found personally used a knife in the murder of Shaw, and conspiracy or aider and abettor liability as to Paonessa, we cannot determine on this record that that is what it did. The jury found Riggio guilty of second degree murder in the killing of Shaw. It is not clear from the record how the jury reached its decision, since the existence of a conspiracy including all three would presumably have resulted in first degree convictions for all. It may be that the jury compromised with regard to Riggio, or that it determined that Riggio was sufficiently less culpable than the others that he should not receive the same degree of blame.
Respondent urges that because the jury found that Baker, as to count II, attempted the murder of Parkison “willfully, deliberately, and with premeditation,” it necessarily found that Baker murdered Shaw with premeditation. There are differences between the two, however. Shaw was attacked earlier and had armed himself with a baseball bat. Parkison apparently had not armed himself. (Cf. People v. Flores, supra, 7 Cal.App.4th at p. 1361 [inconceivable the jury would find an intention to kill only the victims who survived, but not the one who died].) Unfortunately, the jury was not required to decide the issue.
The failure to instruct on lesser included offenses was prejudicial under the standard stated in People v. Breverman, supra, 19 Cal.4th at page 165. It is reasonably probable that the jury would have reached a different verdict if it had known of the option to convict appellants of lesser included offenses. We conclude that in light of the seriousness of the instructional errors which occurred, the convictions of all three appellants must be reversed.
IV. Remaining contentions
Since we reverse, we need not reach the remaining issues raised by the parties.
The judgments of conviction are reversed. The matter is remanded for retrial.
Zebrowski, J., concurred.
A11 statutory references are to the Penal Code, unless otherwise stated.
The relevant portion of section 182 provides that two or more people conspiring to commit a felony “shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed
As will be discussed next, our Supreme Court has precluded the extension of the felony-murder concept to a death arising from a burglary where, as here, the intent of the burglary was to commit an assault. (People v. Wilson (1969) 1 Cal.3d 431, 440 [82 Cal.Rptr. 494, 462 P.2d 22].)
Baker requested CALJIC Nos. 5.10 (resisting attempt to commit felony); 5.12 (justifiable homicide in self-defense); 5.13 (justifiable homicide—lawful defense of self or another); 5.15 (charge of murder—burden of proof re justification or excuse); 5.16 (forcible and atrocious crime—defined); 5.32 (use of force in defense of another); 5.42 (resisting an intruder upon one’s property); 5.43 (force that may be used in defense of property); 5.50 (self-defense— assailed person need not retreat); 5.51 (self-defense—actual danger not necessary); and 5.54 (self-defense by an aggressor). Paonessa requested CALJIC No. 5.17 (actual but unreasonable belief in the necessity to defend—manslaughter). The defendants joined in each others’ requests.