Filed 10/3/13 P. v. Martinez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B242591
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. GA076492)
v.
SEAN MATTHEW MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Teri
Schwartz, Judge. Affirmed.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
This appeal arises out of a shooting on April 11, 2009, in which two young men
were killed and four others were injured. The shooter, Vincent Casio, who was the
subject of a separate appeal, was convicted of two counts of murder (Penal Code § 187,
subd. (a)),1 four counts of premeditated attempted murder (§§ 664, 187, subd. (a)), and
possession of a firearm by a felon (§ 12021, subd. (a)(1)). In the same trial, defendant
and appellant Sean Matthew Martinez was convicted as an aider and abettor of two
counts of second degree murder (§ 187, subd. (a)) and four counts of premeditated
attempted murder.2 The jury found true allegations that the offenses were committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)) and a principal personally and
intentionally discharged a firearm (§ 12022.53, subds. (b)-(e)). Defendant was sentenced
to 40 years to life in state prison.
A defendant may be liable under an aiding and abetting theory in two ways: he
may be found to have possessed the necessary mental state to be guilty of the crime the
perpetrator committed, or guilty of both the crime the perpetrator intended to commit
(target offense) and any crime that is a natural and probable consequence of the intended
crime (non-target offense). (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).)
Throughout the trial, the prosecution proceeded on the theory that defendant possessed
the necessary mental state to be guilty of murder and attempted murder as an aider and
abettor, choosing not to rely on a natural and probable consequences theory. The jury
was instructed accordingly. During deliberations, however, the jury sent questions to the
trial court concerning whether it would be permissible to convict defendant if the crime
defendant intended to aid and abet was not murder or attempted murder, but instead an
uncharged crime. After discussion with counsel outside the presence of the jury, the trial
court elected to instruct under Judicial Council of California Criminal Jury Instructions
(2010) CALCRIM No. 403 (Natural and Probable Consequences (Only Non-Target
1 All further statutory references are to the Penal Code unless otherwise stated.
2 Defendant and Casio were both found not guilty of false imprisonment by
violence (§ 236) in counts 7 and 8.
2
Offense Charged)), identifying the target crime as assault with a deadly weapon or by
means likely to produce great bodily injury. The court permitted both sides to address the
new instruction to the jury.
Defendant contends: 1) there is insufficient evidence to support the convictions
on a direct aiding and abetting theory; 2) the natural and probable consequences
instruction was given in error because it was not supported by the evidence; 3) defendant
was prejudiced by the natural and probable consequences instruction because he had
inadequate notice that the instruction would be given and was denied the right to present
a complete defense; 4) the jury was coerced into rendering guilty verdicts because it was
instructed on natural and probable consequences in the midst of deliberations; and 5) the
jury’s findings of premeditation on the attempted murder convictions were not pled and
must be stricken. Defendant alternately requests that, if the judgment is affirmed, the
trial court be ordered to amend the awards of direct victim restitution to reflect the
imposition of joint and several liability.
We affirm the judgment in its entirety.
FACTS
The Shootings
On April 11, 2009, Christina Sanchez rented a room at the Knights Inn in
Rosemead for her brother Anthony Gonzalez’s sixteenth birthday party. The guests at the
party included Jessica Boyle, Betty Fontenot, Francine Ortega, Richard Herrera,
Toumaria Harris, Armando Davila, Raudel Ceballos, Gustavo Delatorre, and Angel
Guerrero. When Sanchez, Gonzalez, and Davila arrived at the motel, approximately 15
people were already in the room. Less than an hour later, Sanchez let Richard Logan,
whom she had gone to high school with, into the room. Defendant and Casio arrived
together a little later. Sanchez did not want to let defendant and Casio in because she did
not know them or like the way they looked, but she relented because Logan knew them.
3
Several of the guests described defendant and Casio as looking like gangbangers, which
made them uncomfortable.
Gonzalez told defendant and Casio that if they had any problems at the party, they
should talk to him and he would take care of things. At some point, Casio called Harris a
highly offensive racial epithet. Gonzalez reminded defendant and Casio that he had
asked them to come to him if they had a problem and not to start any trouble. One of
them apologized.
Defendant and Casio remained at the party for about an hour to an hour and a half
and left. They returned about an hour later. Casio had a bandana tied over his mouth.
Casio pointed a gun at the balcony, where Gonzalez, Delatorre, Ceballos, Harris, and
Davila were standing and told Guerrero, who was on the bed, to get on the balcony with
them. Casio walked behind Guerrero, telling him to get outside. Logan ran toward the
balcony and jumped over the edge. The balcony was high. Delatorre tried to stop Casio
from corralling people onto the balcony, but Casio shot him in the face. More than ten
shots were fired. Some of the guests testified that defendant was by the door during the
shooting, and they heard him telling Casio to hurry out of the room when the shooting
ceased. Herrera was in the bathroom when the shooting began. He opened the door, but
immediately went back inside, along with Sanchez, after either Casio or defendant yelled
at him to go back into the bathroom. Guerrero and Delatorre were killed in the gunfire.
Gonzalez, Harris, Davila, and Ceballos were injured.
A motel patron heard the gunshots and went outside to see what was going on. He
saw people running, one of whom was a male with a bandana covering his face. One of
the people running said, “This is a hood thing. Get back in your room.”
Statements by Jaki Arteaga
On April 21, 2009, Los Angeles County Sheriff’s Detective Richard Ramirez and
Sergeant Edward Godfrey conducted an interview with Jaki Arteaga, which the
prosecution introduced at trial. Arteaga was originally a codefendant in the case, but he
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pled guilty as an accessory after the fact before the preliminary hearing. Arteaga stated
that he picked up defendant on the night of the shooting and the two drove around for a
while before picking up Casio, who was one of defendant’s “homies.” Arteaga dropped
the two men off at a motel. Before getting out of Arteaga’s truck, defendant told Arteaga
that he was going to “squabble with some fools.” Later, defendant called Arteaga again
and asked him to return to the motel to pick them up. Defendant told Arteaga that “the
homies are here with some puss from Lomas” and instructed him to leave the truck
running. While he was waiting in the parking lot, Arteaga heard gunshots and drove
away. He stopped when he saw defendant and Casio, right behind defendant, to let them
into the truck. As they were driving away from the scene, either Casio or defendant
threw a gun clip out of the truck. Arteaga dropped them off together and went home. At
trial, Arteaga testified after the judge told him he would be held in contempt if he refused.
He denied many of his statements at the interview.
Expert Testimony
San Gabriel Police Detective Fabian Valdez, the prosecution’s gang expert,
testified regarding the Sangra gang. The motel in which the shooting took place was
within Sangra territory. Detective Valdez said that members of Sangra “ha[d] been
arrested for a multitude of crimes,” including assault with a deadly weapon, auto theft,
homicide, and robbery and witness intimidation. Lomas was its primary rival. Sangra
members did not “get along” with Blacks.
Both Casio and defendant were documented as gang members, although police
had fewer prior contacts with defendant than with Casio. Their names appeared in
Sangra “roll calls”—lists of Sangra members written on building walls. Logan was a
prolific “tagger” for Sangra and associated with the gang with hopes of becoming a
member. Logan’s father was a Sangra member. Detective Valdez opined Casio was a
member of Sangra based on Casio’s tattoos, his dress, demeanor, and his admission that
5
he was a member of Sangra. Valdez had known Casio for approximately ten years and
knew his moniker was “Boy,” and that he was the “shot caller” of the Sickos clique.
Given a hypothetical situation based on the facts presented at trial, Detective
Valdez opined the shootings were gang-related because Hispanic gangs do not tolerate
Blacks and there were gang members or associates at the party whom the host chastised
for making a derogatory remark about a Black guest. The shooting was intended to
avenge the disrespect because tolerating disrespect was a sign of weakness. Respect was
“everything” in gang culture, and gang members had to be willing to die and kill for it.
The gang’s status as a whole was at stake, and if the disrespect was not avenged, other
gangs would attack members due to the perceived weakness. A gang also maintained its
reputation by terrorizing the community, so that people would be afraid to report crimes
committed by the gang. Gang members were like brothers, who would back each other
up in a fight, and go so far as to kill to protect each other.
Defendant’s Testimony
Defendant testified on his own behalf. He admitted to being a member of Sangra
since the age of 15 and had known Casio for about a year prior to the shooting. On the
night of the shooting, defendant was with Arteaga. They were driving around in
Arteaga’s truck deciding what to do, when Casio called and said he was stranded. Since
gang members do not leave fellow gang members in enemy gang territory, Arteaga drove
and picked Casio up. Casio got a call from Logan, AKA “Little Tricky,” who told him
about the party at the motel in Rosemead. They decided to go because Logan wanted to
join the Sangra gang, and defendant wanted to test his loyalty by fighting with him. It
was important to fight for the gang and to know that members will back each other up in
a fight. When they pulled into the motel, defendant asked Arteaga to stay. Instead, he
agreed to pick defendant up later.
Logan let defendant into the room. Once inside, defendant “challenged” Logan by
asking questions intended to get him to fight. Logan just responded “Okay,” which was
6
not appropriate. Gang members were expected to show readiness and interest in fighting
to prove their loyalty.
Defendant and Logan went to the balcony, while Casio went to the bathroom to
use cocaine given to him by defendant. Defendant and Delatorre, who was also on the
balcony, discussed where they were from. Defendant said he was from Sangra, and
Delatorre said he belonged to a motorcycle gang. Defendant did not feel any tension
between them. Casio came over and told defendant he wanted to “go get”—i.e., steal—a
car. Defendant, Casio, and Logan then went to the sink by the bathroom and used
cocaine. While they were at the sink, Harris came out of the bathroom and leaned over
Casio and spit in the sink; Logan told Harris to “watch where you spit around my
homeboy.” Defendant thought there was going to be a fight. Defendant did not want to
fight and was angry that Logan confronted Harris because if Logan started a fight,
defendant and Casio would have to back him up. Logan then asked Harris if he had a
problem, and they stared at each other. Harris left, bumping Casio with his shoulder.
Casio said he was going to get the car, and defendant wanted to leave because he did not
trust Logan.
Defendant left the party with Casio and two other males. Casio said there was not
enough room and told defendant to stay at the motel. He said he would come back for
him. Defendant went back to the party. Defendant talked to Logan for about 15 minutes
and then called Arteaga to pick him up.
Casio appeared in the doorway. Defendant asked Casio if he had a car, and he
said no. Defendant told him Arteaga was picking him up. They were walking toward the
door when Casio told defendant to “be ready” and pointed to a gun. Casio often carried a
gun because people wanted to kill him. Defendant was armed with a knife because gang
members often engage in violence and may need to defend themselves from rival gang
members. Although he came to the motel because he “intended to engage in gang
behavior,” and knew Casio “wanted to do something,” when Casio said “be ready,”
defendant thought he meant he should be ready to leave.
7
Casio put a bandana around his face. Defendant did not know what Casio was
planning to do, but when he saw Casio reach into his waistband, he thought Casio was
going to rob someone. Defendant was confused and stood by the door to see what would
happen. He heard shots and panicked, so he reached for his pocket knife. He held the
knife out and told Sanchez to “get the fuck in[to the bathroom].” He was afraid she
would be shot. Sanchez ran in and the door closed behind her. Defendant saw Casio
running toward the bathroom so he said, “Let’s get the fuck out of here.” They both ran.
Defendant saw Arteaga speeding out of the parking lot, so he waved him down, and he
and Casio jumped into the truck. Casio told defendant, “You’re coming with me.”
Defendant was afraid Casio would shoot him if he got out of the truck.
Casio told Arteaga to drop them off at his stepfather’s house. Casio told his
stepfather that he lined up people on a balcony and killed five of them. Defendant was
afraid because Casio was shooting up cocaine and had track marks on his arm. He
thought Casio might kill him. Another gang member showed up and Casio bragged
about the shooting. Casio’s stepfather helped them dispose of their clothes and cell
phones. Defendant gave Casio $100 to get him a new cell phone. At some point,
defendant checked the magazine of Casio’s gun and saw ammunition. Defendant stayed
until Casio locked himself in his room. He walked to the bus stop and called his brother
for a ride.
Defendant did not call or talk to the police after his arrest because gang members
who snitched got killed, but he told officers everything after he was arrested.
8
DISCUSSION
I. Denial of Motion to Dismiss/Direct Aiding and Abetting
After presenting the testimony of the first defense witness,3 trial counsel moved
for acquittal under section 1118.1 on the ground there was insufficient evidence to
support defendant’s convictions under a direct theory of aiding and abetting.4 Defendant
challenges the trial court’s denial of the motion. There was no error.
“In reviewing a challenge to the sufficiency of the evidence under the due process
clause of the Fourteenth Amendment to the United States Constitution and/or the due
process clause of article I, section 15 of the California Constitution, we review the entire
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” (People v. Cole (2004) 33 Cal.4th 1158, 1212 (Cole).) “‘“[I]f the
verdict is supported by substantial evidence, we must accord due deference to the trier of
fact and not substitute our evaluation of a witness’s credibility for that of the fact
finder.”’ [Citation.] ‘The standard of review is the same in cases in which the People
rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
3 Defendant had not yet testified in his own defense.
4 Section 1118.1 provides: “In a case tried before a jury, the court on motion of
the defendant or on its own motion, at the close of the evidence on either side and before
the case is submitted to the jury for decision, shall order the entry of a judgment of
acquittal of one or more of the offenses charged in the accusatory pleading if the
evidence then before the court is insufficient to sustain a conviction of such offense or
offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence
offered by the prosecution is not granted, the defendant may offer evidence without first
having reserved that right.”
9
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
“In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial
court applies the same standard an appellate court applies in reviewing the sufficiency of
the evidence to support a conviction, that is, ‘“whether from the evidence, including all
reasonable inferences to be drawn therefrom, there is any substantial evidence of the
existence of each element of the offense charged.” [Citations.]’ [Citation.] ‘Where the
section 1118.1 motion is made at the close of the prosecution’s case-in-chief, the
sufficiency of the evidence is tested as it stood at that point.’ [Citation.]” (Cole, supra,
33 Cal.4th at pp. 1212-1213.)
Under a direct theory of aiding and abetting, the defendant must have known and
shared the perpetrator’s murderous intent to be found liable. (See McCoy, supra, 25
Cal.4th at pp. 1117-1118; People v. Prettyman (1996) 14 Cal.4th 248, 259.) The aider
and abettor shares the perpetrator’s specific intent when “‘“the accomplice ‘knows the
full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the
intent or purpose of facilitating [the killing].’”’ [Citation.]” (People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1164, quoting McCoy, supra, at pp. 1117-1118.) Although
mere presence at a crime scene does not suffice to establish aiding and abetting, acts
tending to demonstrate aiding and abetting include “presence at the scene . . . ,
companionship, and conduct before and after the crime, including flight.” (People v.
Haynes (1998) 61 Cal.App.4th 1282, 1294.) Those factors, among others, weigh heavily
against defendant in this case.
The facts support the findings that defendant knew Casio planned to kill his
victims, shared his intent, and aided and encouraged him. Defendant and Casio belonged
to the same gang. They arrived at the party together, stayed in one another’s company
during the party, and left together. Defendant was present when Gonzalez confronted
Casio and chastised him publicly about his racial slur against Harris. An expert testified
that within gang culture, Gonzalez’s action would be considered disrespectful.
Disrespect against one gang member requires retribution, and fellow gang members are
10
expected to back up a disrespected member in an altercation. Defendant was with Casio
at the scene during the shooting, and two witnesses testified he was positioned by the
door. Casio put a bandana over his face, walked straight into the room, corralled the
victims onto the balcony, and immediately opened fire without provocation. The jury
could reasonably infer that both men knew what was going to happen as they entered the
room, and that defendant was blocking the exit to deter anyone from trying to escape
while Casio carried out the shooting. Defendant and Casio fled the motel room together,
and as they left, one of them told an onlooker, “This is a hood thing. Get back in your
room,” indicating that the two of them were working together in a gang-related
altercation.
Evidence was presented that defendant arranged transportation for himself and
Casio to and from the motel. Arteaga told the police that defendant called to ask Arteaga
to drop them off at the motel and later called for Arteaga to pick them up.5 Defendant
told Arteaga he was going to “squabble with some fools”; “homies are here with some
puss from Lomas,” a derogatory reference to a rival gang; and to leave the truck running
when he got to the motel, from which it could be inferred that defendant and Casio
planned to leave the area rapidly, and likely for a nefarious purpose. The timing of the
pick up was also suspect. The shooting took place just after Arteaga arrived at the motel.
Moments later, defendant jumped a fence at the motel and ran to Arteaga’s moving truck.
Defendant waved Casio into the truck as well, and one of them disposed of a gun
magazine while Arteaga was driving. Arteaga dropped defendant and Casio off at the
same location.
5 Defendant argues that Arteaga’s testimony must be corroborated because he
was an accomplice. However, Arteaga pled guilty as an accessory after the fact before
the preliminary hearing, and an accessory is not an accomplice, nor does the testimony of
an accessory require corroboration. (People v. Boyer (2006) 38 Cal.4th 412, 466-467.)
Moreover, as the Attorney General emphasizes, the defense opposed identifying Arteaga
as an accomplice in the instruction regarding the necessity of corroboration of accomplice
testimony and has forfeited the right to complain of its tactical decision at this juncture.
In any event, the record contains abundant corroboration of Arteaga’s testimony and
statements.
11
The prosecution presented solid, credible evidence of defendant’s guilt as an aider
and abettor. The motion to dismiss was properly denied.
II. Contentions Relating to the Natural and Probable Consequences Theory
A. Procedural Background
Prior to defendant’s testimony, the trial court and counsel had a conference on jury
instructions. The prosecutor considered presenting the natural and probable
consequences doctrine using the target offense of assault with force likely to produce
great bodily injury based on defendant’s statement to Arteaga that he intended to
“squabble with some fools.” After reviewing CALCRIM No. 403, however, he decided
against it, stating: “I think it’s just a really complicated instruction. And if I don’t have
to use it, I won’t.” The court agreed not to give CALCRIM No. 403 based on the
prosecutor’s tactical decision.
After the conclusion of defendant’s testimony in another discussion outside the
presence of the jury, the prosecutor said: “One thought that just hit me with regard to
instructions, there were two concepts that arose today. One was the idea of natural and
probable consequences, but I’m not going to request that. I don’t think it quite got to that
state.”
The trial court instructed the jury only on direct aiding and abetting. Counsel
made closing arguments, and the jury commenced deliberations on December 13, 2011.
Outside the presence of the jury on December 15, 2011, the court advised the parties that
the previous day, the jury asked the following question: “‘The jury instruction refers to
“the crime.” Are we limited in considering “the crime” as only the crimes listed in
charges 1 through 8. Please elaborate.’” Because Casio was the only defendant charged
in count 9, the court asked the jury for a clarification. The jury responded:
“‘Clarification on applying the jury instruction 401 aiding and abetting. The jury
instruction refers to ‘the crime.’ Are we limited to considering the charges 1 through 8.
12
There was testimony from [defendant] indicating a possible robbery. Can we consider
this speculated robbery scenario that escalated to the resulting charges as the crime even
though it is not among the listed charges?’” The court observed the jury’s clarifying
question related to the natural and probable consequences theory of aiding and abetting,
which the prosecutor opted not to argue for tactical reasons, and which the jury had not
been instructed upon. The parties discussed the issue at length, and agreed not to refer to
the natural and probable consequences doctrine in response to the jury’s question. The
jury was provided with the response: “‘While all evidence may be considered by you to
find the defendant guilty of the crimes charged in counts 1 through 8, you must find that
the defendant intended to and did assist in the commission of those crimes.’” The jury
recommenced deliberations.
On December 16, 2011, the jury requested, and was provided, read back of
Ceballos’s testimony covering the period shortly before the crime through shortly after
the crime. On December 20, 2011, the jury was provided read back of Fontenot’s
testimony from shortly before the crime through shortly after the crime. Thereafter, the
jury reached verdicts on all counts related to Casio and on counts 7 and 8 related to
defendant. Deliberations continued on January 3, 2012, as to counts 1-6, related to
defendant. That day, the jury heard read back of Herrera’s testimony covering the period
from just before the crime to shortly after the crime.
Near the close of deliberations on January 4, 2012, the jury submitted the
following note: “‘Can we have a replacement verdict form for count 8. And we feel
deadlocked as to counts 1 through 6.’” On January 5, 2012, the trial court questioned the
jury foreperson (Juror No. 8) about the inquiry. Juror No. 8 stated the word “deadlocked”
in the note meant that all 12 jurors could not agree to a decision, which was not a
decision of guilty versus not guilty. The court asked: “Is there another question that
needs to be presented to the court?” Juror No. 8 replied that further clarification on the
court’s prior response to the jury’s question regarding aiding and abetting could help with
the deadlock. The other 11 jurors agreed with this assessment. Juror No. 8 stated that the
court’s prior response “brought more questions than answers.” At the court’s request, the
13
jury provided clarification of its request: “Jury instruction 401 Aiding and Abetting. We
are having trouble with the language of the instruction. The instruction requires we find
all four elements to be met to determine the defendant aided and abetted. We are having
trouble applying the language in elements #2 and #4, specifically the language that the
defendant knew ‘the crimes’ in counts 1-6 were going to be committed. If the defendant
thought, ‘a different crime,’ other than the charges in counts 1-6 was going to be
committed does that satisfy the elements of this instruction? If we cannot agree on
Aiding and Abetting are we to move forward with voting on all counts?”
Outside the presence of the jury, the trial court assessed the situation with counsel,
stating “this is the same situation we were in before.” The prosecutor requested that the
trial court give the natural and probable consequences instruction specifying robbery and
assault with a firearm as the target offenses. Defense counsel proposed instead that the
court give the jury a modified version of CALCRIM No. 401, arguing that giving the
natural and probable consequences instruction violated defendant’s rights to a fair trial
and due process of law. The court observed that the prosecutor had twice stated he was
not requesting the natural and probable consequences instruction before the case went to
the jury. The court stated it should have given the instruction, despite the prosecutor’s
position, because substantial evidence supported it with a target crime of assault. The
court recounted the following facts, which supported the theory: defendant and Casio
were gang members and companions throughout the evening of the shooting, defendant
intended to fight Logan to test his gang loyalty, Casio carried a gun and defendant carried
a knife, a shooting occurred, and defendant testified that he stood by the door holding the
knife. The court denied the prosecutor’s request to instruct the jury on robbery as a target
offense but agreed to instruct on assault as a target offense.
In open court, the trial court reread the jury’s question and informed the jury: “In
response to your question, I am going to attempt to provide further instructions that may
answer that question depending upon what you find to be the facts. This was not given to
you originally, nor was it presented to you in argument. However, it is an instruction that
I need to give you in light of the question. And just like all the other instructions, you
14
were told that some apply and some may not depending on what you find to be the facts.”
The court then instructed on the natural and probable consequences doctrine with assault
with a deadly weapon or by means likely to produce great bodily injury (§ 245, subd. (a))
as the target offense of the intended crimes of murder or attempted murder.
The prosecutor and defense gave supplemental closing arguments based on the
additional instructions. The prosecutor argued that defendant was guilty under both
aiding and abetting theories. Defense counsel argued the instructions on the natural and
probable consequences did not apply to the facts of the case.
Deliberations recommenced and continued on January 6 and 9, 2012. The jury
reached guilty verdicts on the murder and attempted murder counts on January 10, 2012.
B. Sufficiency of the Evidence Under the Natural and Probable Consequences
Doctrine
Defendant contends the trial court erred in instructing the jury on the natural and
probable consequences theory, because the theory was not supported by the evidence.
We apply the substantial evidence standard of review to this contention.
“‘“A person who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime. The latter question is not whether the aider and abettor actually foresaw the
additional crime, but whether, judged objectively, it was reasonably foreseeable.
[Citation.]” [Citation.] Liability under the natural and probable consequences doctrine
“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.” [Citation.]’ [Citations.]” (People v. Favor (2012) 54 Cal.4th
868, 874 (Favor).) To be reasonably foreseeable, the consequences of the perpetrator’s
act “‘“need not have been a strong probability; a possible consequence which might
reasonably have been contemplated is enough. . . .” [Citation.]’ [Citation.]” (People v.
15
Medina (2009) 46 Cal.4th 913, 920, quoting People v. Nguyen (1993) 21 Cal.App.4th
518, 535.) “A reasonably foreseeable consequence is a factual issue to be resolved by the
jury who evaluates all the factual circumstances of the individual case. [Citation.]”
(Favor, supra, at p. 874.)
Courts have repeatedly concluded that murder and attempted murder are a natural
and probable consequence of assault by gang members. (See People v. Gonzales (2001)
87 Cal.App.4th 1, 10-11 [fatal shooting during gang-related fistfight in which the
defendant openly carried a gun was natural and probable consequence of fistfight];
People v. Montes (1999) 74 Cal.App.4th 1050, 1055-1056 [shooting of rival gang
member during retreat from fight was natural and probable consequence of gang fight in
which defendant wielded a chain]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376
[defendant’s punching of victim during gang confrontation foreseeably led to fatal
shooting of victim by fellow gang member]; People v. Godinez (1992) 2 Cal.App.4th
492, 499-500 [fatal stabbing of rival gang member either during or after fistfight was
natural and probable consequence of fistfight]; People v. Montano (1979) 96 Cal.App.3d
221, 226 [defendant’s aiding and encouragement of battery on victim foreseeably led to
shooting of victim by fellow gang members], superceded by statute on another point as
stated in People v. Gibbs (1983) 145 Cal.App.3d 794, 797.)
Defendant attempts to circumvent a similar conclusion in his case by arguing that
no assault occurred. “As this court explained more than a century ago, ‘Holding up a fist
in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is
within its range, have been held to constitute an assault. So, any other similar act,
accompanied by such circumstances as denote an intention existing at the time, coupled
with a present ability of using actual violence against the person of another, will be
considered an assault.’ [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 219.)
When Casio brandished his gun and forced his victims onto the balcony, the assault was
16
complete. It was reasonably foreseeable that Casio, as a gang member intending to
avenge disrespect through assault with a firearm, could kill or attempt to kill his victims.6
Defendant also argues any intended assault was unconnected to the murders and
attempted murders, such that the crimes could not have been a natural and probable
consequence of the intended assault. He focuses on the possible altercation with Logan
as the target offense, arguing that any animosity was remote, and that Logan was not a
target of the shooting. To the contrary, defendant testified that his issues with Logan
arose on the same night and within a few hours of the shooting. Defendant admitted that
he planned to test Logan by fighting him, Logan responded inappropriately to his
challenge, Logan irritated defendant by aggravating the incident with Harris, and
ultimately he did not trust Logan—which was absolutely essential in gang culture. The
evidence also tends to prove Logan was a target: Logan was on the balcony inside the
area of Casio’s intended range just before the shooting started, and he took drastic action
to avoid being shot. Despite the fact that he was associated with Sangra, Logan did not
hesitate to jump off the high balcony to the shock of others standing with him, which
tends to show that he understood he was a target as soon as Casio entered the room with a
gun.
Moreover, there was evidence of incidents with other guests at the party that night
that would have provoked an assault. Gonzalez chastised Casio for his racial epithet in
front of defendant. Harris spat over Casio’s shoulder into the sink and then bumped
6 Defendant endeavors to distinguish his case by asserting that, in contrast to the
majority of California precedent, this case did not involve a clash between rival gang
members. In fact, Arteaga stated that defendant told him there were rival Lomas
members at the party, and either defendant or Casio yelled that the shooting was “a hood
thing” at an onlooker, both of which suggest the shooting was against rival gang
members. Moreover, evidence was presented that Casio acted to avenge disrespect,
express disapproval of association with Blacks, and punish inappropriate behavior by a
fellow gang member that could be viewed as disloyal. Although we need not decide the
issue here, the fact that the shooting was motivated by the dictates of gang culture is
evidence enough that the crimes were the natural and probable consequence of an
intended assault with a deadly weapon.
17
Casio in the shoulder as he exited the bathroom when both Logan and defendant were
present. These public displays of disrespect would necessitate defendant backing up
Casio if Casio chose to fight, which was likely within gang culture. The jury could
reasonably infer the incidents with Gonzalez and Harris, combined with the racial
prejudice that Sangra gang members have against Blacks, were reason enough for Casio
and defendant to return to the motel room and “squabble with some fools” who had
disrespected them.
Additionally, defendant knew Casio had a gun, and was himself carrying a knife.
Defendant admitted he was standing by the door—the only route of escape from the room
other than the balcony, which was high off the ground. He brandished a 3 1/2-inch blade
and ordered Sanchez to “get the fuck back in there” when she attempted to leave the
bathroom. Although defendant’s explanations for these actions may have been less than
sinister, the jury was free to accept his testimony regarding the actions and reject his
explanations. (Cf. Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68 [“‘the jury
properly may reject part of the testimony of a witness, though not directly contradicted,
and combine the accepted portions with bits of testimony or inferences from the
testimony of other witnesses thus weaving a cloth of truth out of selected available
material. [Citations.]’”].)
After the shooting, defendant helped Casio escape. He dove into Arteaga’s
vehicle and encouraged Casio to jump into the moving truck as well, and they fled the
scene together. Together they disposed of a gun magazine and went to Casio’s
stepfather’s house, where they destroyed their cell phones and disposed of their clothes.
Defendant checked Casio’s gun for ammunition. Although he claimed to be fearful,
defendant gave Casio $100 because he wanted Casio to buy him a new phone. The jury
could reasonably find that had he wished to end their association, it is unlikely defendant
would have remained with Casio after they successfully fled the scene.
In light of the substantial evidence presented, we conclude the trial court did not
err in giving the natural and probable consequences instruction.
18
C. Notice of the Prosecution’s Natural and Probable Consequences Theory
Defendant contends that by giving the natural and probable consequences
instruction during deliberations, the trial court deprived him of fair notice of the charges
against him, as well as the right to present a complete defense. Because the issues
involve mixed questions of fact and law, our review is de novo. (People v. Quiroz (2013)
215 Cal.App.4th 65, 70 (Quiroz).) We conclude that notice was adequate, and that
defendant had the opportunity to present a full defense.
At the preliminary hearing, which is considered to be “‘the touchstone of due
process notice to a defendant’” (People v. Jones (1990) 51 Cal.3d 294, 312), defendant
was put on notice that he could be charged on an aiding and abetting theory. Evidence
was presented that Casio told defendant to “get ready,” defendant knew Casio had a gun,
defendant watched Casio put a bandana over his mouth, and defendant decided to remain
in the room by the door to the hallway. This evidence supports the theory defendant
knew that either an assault or a murder would be committed, shared Casio’s intention,
and aided and abetted the crimes by guarding the door. Additionally, defendant was
charged with two counts of murder and two counts of attempted murder, and in
California, “an instrument charging a defendant as a principal is deemed to charge him as
an aider and abettor as well. (§ 971.) This ‘notice as a principal is sufficient to support a
conviction as an aider and abettor . . . “. . . without the accusatory pleading reciting the
aiding and abetting theory. . . .”’ [Citations.]” (Quiroz, supra, 215 Cal.App.4th at p. 70.)
Because the natural and probable consequences doctrine describes one type of aiding and
abetting (McCoy, supra, 25 Cal.4th at p. 1117), defendant had adequate notice of the
theory. In addition to the other evidence proffered at trial, which we discussed above,
defendant’s own testimony supplied much of the factual basis for a natural and probable
consequences theory.
Defendant also had the opportunity to present a complete defense. As the
Attorney General concedes, the prosecution chose not to rely on the natural and probable
consequences doctrine for tactical reasons and represented to defendant throughout the
19
trial that it would not do so. The prosecution did not “ambush” or “mislead” defendant,
however. It was only after the jury twice questioned the trial court concerning the law
that the instruction—which was a correct formulation of the law as applied to the facts—
was given.
The trial court has wide discretion concerning the timing of its instructions to the
jury. (People v. Ardoin (2011) 196 Cal.App.4th 102, 127 (Ardoin).) Section 1093,
subdivision (f), provides: “At the beginning of the trial or from time to time during the
trial, and without any request from either party, the trial judge may give the jury such
instructions on the law applicable to the case as the judge may deem necessary for their
guidance on hearing the case.” Under section 1094, further instruction may be given
during deliberations “for good reasons, and in the sound discretion of the Court.” (See
Ardoin, supra, at pp. 126-128.)
Here, the trial court did not abuse its discretion by giving a supplemental
instruction on the natural and probable consequences theory. When questioned by the
jury, the court was statutorily obligated “‘to provide the jury with information the jury
desire[d] on points of law.’ [Citations.]” (Ardoin, supra, 196 Cal.App.4th at pp. 127-
128.) It was also required to “‘attempt “to clear up any instructional confusion expressed
by the jury.” [Citation.]’ [Citation.]” (Id. at p. 128.) “The trial court had the further
duty in the case to instruct the jury on the law relevant to the issues raised by the
evidence.” (Ibid.) Finally, “‘[t]he court [was] not precluded from giving any instruction
for which there [was] evidentiary support. The fact that a party did not pursue a
particular theory does not preclude the trial judge from giving an instruction on that
theory where it deems such an instruction to be appropriate.’ [Citation.]” 7 (Ibid.)
7 Defendant mischaracterizes the trial court’s position on whether substantial
evidence supported giving the natural and probable consequences instruction. When the
court and the parties discussed the instruction, there were two possible target offenses
under consideration—robbery and assault with a deadly weapon. The court did not
believe the instruction was supported on the theory that robbery was the target offense. It
did, however, find that assault with a deadly weapon was supported and stated that it
20
Moreover, when the trial court instructed the jury it emphasized that, as with other
instructions, the natural and probable consequences doctrine may or may not apply, and
the jury was free to disregard the instruction if it was not relevant to the jury’s findings.
Further argument was permitted in light of the instruction, and defense counsel took
advantage of the opportunity to argue the instruction did not apply to defendant’s case.
Defense counsel did not request to reopen the case to introduce additional evidence or
request a continuance to prepare for his supplemental closing argument. (See People v.
Kipp (2001) 26 Cal.4th 1100, 1131-1132 [“defendant waived any claim of insufficient
notice by not moving to reopen when he learned that the court would instruct the jury on
felony murder”]; People v. Memro (1995) 11 Cal.4th 786, 869 [defendant forfeited claim
prosecution’s felony-murder theory surprised him because he failed to move to reopen
evidence].) Under these circumstances, defendant was not denied the opportunity to
present a complete defense.
D. Timing of the Natural and Probable Consequences Instruction
Defendant next contends the timing of the natural and probable consequences
instruction coerced the jury into returning guilty verdicts. As we have already stated, the
trial court had wide discretion to give the natural and probable consequences instruction
during deliberations (Ardoin, supra, 196 Cal.App.4th at p. 127) and did not abuse its
discretion in doing so. Nor was the jury coerced by the court’s response to its inquiries.
“Whether statements of a trial judge amount to coercion of a verdict is peculiarly
dependent upon the facts of each case.” (People v. Burton (1961) 55 Cal.2d 328, 356,
abrogated on another point by People v. Brown (1994) 8 Cal.4th 746, 748-750, 762-763.)
“The basic question . . . is whether the remarks of the court, viewed in the totality of
applicable circumstances, operate to displace the independent judgment of the jury in
determined not to give the instruction earlier because the prosecution had chosen not to
rely on it.
21
favor of considerations of compromise and expediency.” (People v. Carter (1968) 68
Cal.2d 810, 817, abrogated on other grounds by People v. Gainer (1977) 19 Cal.3d 835,
851-852.)
Looking at the totality of the circumstances, we conclude the jury was not coerced
in this case. People v. Stouter (1904) 142 Cal. 146 (Stouter) and People v. Jennings
(1972) 22 Cal.App.3d 945 (Jennings), on which defendant relies, differ from this case. In
both cases, a new offense was introduced in the instructions during deliberations.
(Stouter, supra, at pp. 149-151 [jury was instructed on attempted lewd act upon a child
during deliberations, although he was charged and tried for lewd act upon a child];
Jennings, supra, at pp. 947-950 [jury was instructed on assault with a deadly weapon
during deliberations although defendant was charged and tried for assault with intent to
commit murder].) Here, the jury was further instructed on aiding and abetting the
charged offenses under the natural and probable consequences doctrine. The trial court
specifically verified that the jury was not “deadlocked” on the question of innocence or
guilt, but needed clarification of the meaning of the instructions given. Although the jury
inquired as to whether defendant could be convicted on the theory that he aided and
abetted a robbery, the court designated only felony assault as the target offense, because
it did not deem robbery to be a target offense supported by substantial evidence. The
verdicts were reached not because the jury was pressured, but because it pursued its duty
to assess the facts in light of the relevant law, stated fully and accurately, and the court
fulfilled its obligation to provide complete instruction on the applicable law.
III. Premeditated Attempted Murder Findings
Where it has been pleaded and proven an attempted murder was willful, deliberate,
and premeditated, section 664, subdivision (a) provides for an increase in the maximum
determinate term to a life sentence. (People v. Arias (2010) 182 Cal.App.4th 1009, 1011,
fn. 2 (Arias).) The statute specifically requires that “[t]he additional term provided in this
section for attempted willful, deliberate, and premeditated murder shall not be imposed
22
unless the fact that the attempted murder was willful, deliberate, and premeditated is
charged in the accusatory pleading and admitted or found to be true by the trier of fact.”
(§ 664, subd. (a).) Additional to the pleading requirements contained in section 664, the
federal Constitution requires that “the accused . . . be informed of the nature and cause of
the accusation” (U.S. Const., 6th Amend.), such that he/she is afforded a reasonable
opportunity to prepare a defense. (People v. Jones (1990) 51 Cal.3d 294, 317 (Jones).)
This includes fair notice of allegations that will increase the defendant’s punishment,
including section 664, subdivision (a) allegations. (People v. Houston (2012) 54 Cal.4th
1186, 1227 (Houston).)
Defendant contends the jury findings of premeditation on the attempted murder
charges (counts 3-6) should be stricken because the prosecution failed to plead that the
attempted murders were committed with premeditation. The Attorney General does not
contest the information and amended information failed to allege the attempted murders
were deliberate and premeditated but contends defendant has forfeited this claim by
failing to object, despite having fair notice of the allegations. We agree. Fair notice may
be accomplished by various means, as was the case here. (See, e.g., Jones, supra, 51
Cal.3d at pp. 317-318.)
None of the three versions of the information against defendant included
allegations that any of the four attempted murders charged were willful, deliberate, and
premeditated. Before the close of its case-in-chief, however, the prosecution provided a
list of jury instructions to the trial court and opposing counsel, including CALCRIM
No. 601 (Attempted Murder: Deliberation and Premeditation).8 The court discussed
8 CALCRIM No. 601 provides as follows: “If you find the defendant guilty of
attempted murder, you must then decide whether the People have proved the additional
allegation that the attempted murder was done willfully, and with deliberation and
premeditation.
“The defendant acted willfully if he intended to kill when he acted. The defendant
deliberated if he carefully weighed the considerations for and against his choice and,
23
proposed modifications to CALCRIM No. 601 with counsel prior to the close of the
prosecution’s case. Defense counsel did not object to inclusion of the instruction.9
The verdict forms submitted to the jury as to counts 3-6 included the allegation
that the attempted murders were done willfully and with deliberation and premeditation.
The trial court asked defense counsel if there were any objections to the verdict forms.
No objections were made. The jury expressly found true the allegations that the
attempted murders charged in counts 3-6 were committed willfully, deliberately, and with
premeditation. The prosecutor’s sentencing memorandum sought imposition of a life
term on all four attempted murder convictions. The court sentenced defendant to a
consecutive life term on each count of attempted murder without objection.
Under these circumstances, we agree with the Attorney General the instant case is
more closely analogous to Houston, supra, 54 Cal.4th 1186, than it is to Arias, supra, 182
Cal.App.4th 1009, upon which defendant relies.
knowing the consequences, decided to kill. The defendant premeditated if he decided to
kill before acting.
“The attempted murder was done willfully and with deliberation and
premeditation if either [the shooter] or [both perpetrators] acted with that state of mind.
“The length of time the person spends considering whether to kill does not alone
determine whether the attempted killing is deliberate and premeditated. The amount of
time required for deliberation and premeditation may vary from person to person and
according to the circumstances. A decision to kill made rashly, impulsively, or without
careful consideration of the choice and its consequences is not deliberate and
premeditated. On the other hand, a cold, calculated decision to kill can be reached
quickly. The test is the extent of the reflection, not the length of time.
“The People have the burden of proving this allegation beyond a reasonable doubt.
If the People have not met this burden, you must find this allegation has not been
proved.”
9 The only modification made was to replace the words “the defendant or both of
them” in paragraph three with “the shooter or both perpetrators.”
24
In Arias, the information charged the defendant with two counts of attempted
murder, but, as in this case, failed to allege the attempted murders were willful,
deliberate, and premeditated, or to reference section 664, subdivision (a). (Arias, supra,
182 Cal.App.4th at p. 1017.) The information was never amended to include the
allegations. (Ibid.) Without objection from either of the parties, the jury was instructed
that if it found defendant guilty of attempted murder, it must then determine whether the
attempted murders were willful, deliberate, and premeditated. (Ibid.) The verdict forms,
which were also submitted to the jury without objection, did not state that the jury must
make a separate finding as to whether each attempted murder was willful, deliberate, and
premeditated. (Ibid.) Instead, the verdict forms required the jury’s finding as to whether
the defendant was guilty of “first degree attempted murder,” although attempted murder
is not divided into degrees. (Ibid.) The jury found the defendant guilty of “first degree
attempted murder” as to both counts. (Ibid.) At sentencing, the trial court imposed life
imprisonment on the basis of the “first degree attempted murder” convictions. (Ibid.)
We held in Arias that the defendant’s claim had not been forfeited and ordered the
trial court to strike the section 664, subdivision (a) sentencing enhancements, remanding
the matter for further sentencing. (Arias, supra, 182 Cal.App.4th at pp. 1021-1022.) We
based our decision on the fact that the defendant was given no notice of the section 664,
subdivision (a) enhancement, and we concluded “[t]his was no mere formal defect in
information,” but rather an omission that prejudiced a substantial right. (Id. at p. 1020.)
We held that neither abuse of discretion nor harmless error standards of review were
applicable, distinguishing the case from those in which the charging document was
amended during trial. (Ibid.)
In Houston, our Supreme Court held the defendant forfeited his claim that his life
sentences for attempted murder must be reversed because “defendant received adequate
notice of the sentence he faced, and the jury made an express finding that the attempted
murders were willful, deliberate, and premeditated.” (Houston, supra, 54 Cal.4th at
p. 1228.) As in this case and Arias, the information failed to allege the attempted
murders were deliberate and premeditated. (Id. at p. 1226.) Also like Arias and the
25
instant case, the trial court in Houston issued instructions that included willful, deliberate,
and premeditated attempted murder. (Id. at p. 1227.) In contrast to Arias, however, the
trial court in Houston issued verdict forms including willful, deliberate, and premeditated
attempted murder as a special finding. (Ibid.) Additionally, during the presentation of
the defendant’s case, the court noted the defendant faced life imprisonment and asked the
parties if there were any objections to the instructions or verdict forms. (Ibid.) Neither
party objected. (Ibid.) The court instructed the jury as to willful, deliberate, and
premeditated attempted murder and indicated that the verdict forms contained a special
finding on the issue. (Ibid.) The jury expressly found the defendant guilty of willful,
deliberate, and premeditated attempted murder, and the defendant was sentenced in
accordance. (Id. at pp. 1227-1228.) The defendant did not object at any time. (Ibid.)
The Houston court distinguished Arias on the basis that in Arias, it was not clear
when the jury instructions and verdict forms were issued, or whether the parties had
discussed the issue of the section 664, subdivision (a) allegations, and the jury had not
expressly found that the murders were willful, deliberate, and premeditated. (Houston,
supra, 54 Cal.4th at p. 1229.) Houston reasoned that the defendant had fair opportunity
to object to the instructions or jury forms at many times during the proceedings, but had
failed to do so, depriving the trial court of the opportunity to hear argument on whether
the information should be amended, and remedy the situation appropriately. (Id. at
pp. 1227-1228.) Accordingly, Houston held that the defendant had forfeited his claim.
(Id. at p. 1229.)
The circumstances here are the same. Although the information was inadequate,
defendant had fair notice of the prosecutor’s intent to pursue the finding and sufficient
time to object. Counsel specifically discussed modifications to CALCRIM No. 601 prior
to the close of the prosecution’s case, but there were no objections to its inclusion.
Because a minor modification was made, as noted above, it is clear the defense had actual
notice of the instruction and therefore had notice of the allegations as well. There were
numerous discussions regarding jury instructions, and counsel were specifically asked
whether they objected to the verdict forms, which included the special findings.
26
Moreover, here the jury expressly found defendant guilty of willful, deliberate, and
premeditated attempted murder in counts 3-6, whereas in Arias, the jury convicted the
defendant of “first degree attempted murder,” a crime which did not exist. We therefore
hold that under the reasoning of Houston, defendant, here, has forfeited his claim that his
four life sentences must be reversed due to defects in the charging document.
IV. Joint and Several Liability on Direct Victim Restitution
Defendant requests that we order the trial court to amend the awards of direct
victim restitution against him and Casio to reflect the imposition of joint and several
liability.
Defendant and Casio were tried together but sentenced separately. Casio was
convicted of the same charges, with the exception that he was additionally convicted of
felon in possession of a firearm. On July 10, 2011, the trial court ordered defendant to
pay direct victim restitution in the amount of $38,530.89 to the Victim’s Compensation
Board, and $1,669.50 to Nicole Richards for out-of-court funeral expenses (§ 1202.4,
subd. (f)).10
Defendant argues the order for restitution in his case should have been made joint
and several with the order in Casio’s case to avoid multiple reimbursement for a single
expense, which would result in a windfall to the victims’ families.
Defendant forfeited his claim by failing to object below. (People v. O’Neal (2004)
122 Cal.App.4th 817, 820.) “[A]ll ‘claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices’ raised for the first time on appeal
are not subject to review. [Citations.]” (People v. Smith (2001) 24 Cal.4th 849, 852
(Smith).) Relying on People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1535
10Section 1202.4, subdivision (f), states in relevant part, “in every case in which
a victim has suffered economic loss as a result of the defendant’s conduct, the court shall
require that the defendant make restitution to the victim or victims in an amount
established by court order. . . .”
27
(Blackburn), defendant argues the sentence was unauthorized, and as a result, his claim
was not forfeited. Defendant’s reliance is misplaced. First, Blackburn did not address
forfeiture by failure to object, and “[i]t is axiomatic that an opinion does not stand for a
proposition the court did not consider.” (People v. Taylor (2010) 48 Cal.4th 574, 626.)
Moreover, the unauthorized sentence exception only applies to sentences that could not
be lawfully imposed under any circumstance, where it is unnecessary to review the
factual findings of the trial court, and where there is no need to remand the matter to the
trial court. (Smith, supra, at p. 852; People v. Brach (2002) 95 Cal.App.4th 571, 578.)
The exception does not apply here.
Even if defendant had not forfeited his claim by failing to raise it, it is without
merit. Although Blackburn held that a trial court has “the authority to order direct victim
restitution paid by both defendants jointly and severally[,]” neither Blackburn nor the
other cases defendant cites stand for the proposition that the court must order joint and
several liability. (Blackburn, supra, 72 Cal.App.4th at p. 1535; see People v. Neely
(2009) 176 Cal.App.4th 787, 800; People v. Madrana (1997) 55 Cal.App.4th 1044, 1049-
1052 (Madrana).)
Section 1202.4, subdivision (j) provides that restitution paid “shall be credited to
any other judgments for the same losses obtained against the defendant arising out of the
crime for which the defendant was convicted.” “The court in People v. Zito [(1992) 8
Cal.App.4th 736, 745,] construed the term ‘defendant’ to include ‘codefendants.’
[Citation.] Thus if the combined payments made by multiple defendants exceed the
victim’s loss, each defendant would be entitled to a pro rata refund of any overpayment.”
(People v. Arnold (1994) 27 Cal.App.4th 1096, 1100 (Arnold).) Although Arnold
discussed an earlier statute (Gov. Code, § 13967, subd. (c)), the language of the two
versions of the law is sufficiently similar for its interpretation to be applicable here.
(Madrana, supra, 55 Cal.App.4th at pp. 1050-1051.) Because the law protects defendant
against overpayment to the victims, we conclude there was no error meriting a remedy on
appeal.
28
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
KUMAR, J.*
* Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
29
The People v. Martinez CA2/5
Combined Opinion