Filed 5/20/21 P. v. Altamirez CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301399
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA140483)
v.
BRIAN JESSE ALTAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Olivia Rosales, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Brian Jesse Altamirez
provided a gun to Jesus Chavez, knowing Chavez intended
to kill Sialeuvea Sitani, and Chavez shot at Sitani from a
car, killing him. Altamirez appeals from a judgment
following a jury trial in which he was convicted of first
degree murder (Pen. Code, § 187, subd. (a)),1 soliciting
another person to dissuade a witness (§ 653f, subd. (a)), and
dissuading a witness by force or threat (§ 136.1, subd. (c)(1)).
The jury found true the enhancement allegation that a
principal was armed with a firearm in the commission of the
murder (§ 12022, subd. (a)(1)) and the special circumstance
allegation that the murder was committed by shooting a
firearm from a motor vehicle with the intent to kill (§ 190.2,
subd. (a)(21)). The trial court sentenced Altamirez to state
prison for life without parole for the murder, stayed the
sentence for the firearm enhancement, imposed the
mitigated term of 16 months for the solicitation crime, and
stayed the sentence for dissuading a witness pursuant to
section 654.
1All further references are to the Penal Code unless
otherwise indicated.
2
Altamirez contends the trial court erred by failing to
instruct the jury that the special circumstance allegation
required finding defendant personally had the specific intent
to kill by means of a drive-by shooting. Altamirez further
contends that there was insufficient evidence to support the
special circumstance finding, because there was no proof
that he knew Chavez intended to kill Sitani by means of a
drive-by shooting, or that defendant intended to aid and abet
a murder committed by means of a drive-by shooting. We
affirm.
FACTS
Initial Confrontation Leading to the Murder
On October 24, 2015, a woman driving Chavez in his
car confronted a man who was socializing with Sitani. Sitani
jumped on the hood of Chavez’s car and pounded the
windshield until it broke. The other man punched out the
front passenger window. The woman and Chavez drove
away.
A week later, on the night of October 31, 2015, Jackie
M. was driving Chavez in his car with two other women. At
Chavez’s request, Jackie M. parked the car in an area near
the train tracks. Chavez got out of the car by himself and
walked over to Altamirez and his girlfriend. Chavez and
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Altamirez talked, shook hands, and walked out of sight for a
few minutes.
Chavez returned to the car carrying a shotgun wrapped
in a pair of jeans. Chavez got back in the car and put the
item underneath the front passenger seat. Chavez asked
one of the women if she knew where to find Sitani. He called
people, asking whether they knew where to find Sitani.
Jackie M. drove near a trailer park and liquor store.
Spotting Sitani with a man named Michael N., Jackie M.
parked the car.
Michael N. approached and spoke to one of the women.
Sitani was several feet behind him. Chavez said to Sitani,
“What’s up, Savage?” Sitani did not approach the vehicle.
He simply responded “what’s up” and lifted his hands, as
though to demonstrate he was unarmed. Chavez said,
“Don’t even trip. I told you he was going to get it.” Chavez
told Michael N., “Get out of the way or I will shoot you, too.
It’s Savage’s time.” Michael N. moved out of the way.
Chavez pulled out a shotgun, leveled it on the window frame,
and fired it at Sitani, killing him.
Events After the Murder
Chavez told Jackie M. to drive away. Jackie M. drove
away quickly, but stopped after a block and all three women
got out of the car. Chavez warned them not to say anything
about the incident, got into the driver’s seat, and drove
away.
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Chavez went to Altamirez’s house immediately after
the shooting. Altamirez called a woman, and the three
attended a party.
The next day, Altamirez asked his friend Leticia R. to
hide the wrapped shotgun. Altamirez told her that
“Bellflower was hot,” meaning that deputies were looking for
something. Leticia R. hid the shotgun in the trunk of her
car. After learning Altamirez had been arrested, Leticia R.
and her friend took the shotgun to another home in Los
Angeles. On December 23, 2015, Leticia R.’s friend took
detectives to the house and told them the gun was in a
closet. The detectives found a shotgun in a closet inside the
residence.
Altamirez was placed in a jail cell with a cooperating
agent on November 16, 2015. Asked if there was evidence
against him, Altamirez said the police had been looking for a
“strap” but could not find it because he “moved that shit to a
different city.” Altamirez also said that he “cleaned that shit
good” and did not leave any fingerprints.
Asked why Chavez “smoked that fool,” Altamirez
replied, “Oh well look, why he smoked this fool dog, well I
could have prevented it fool by not giving him the thing, you
know, but like I said, no questions asked you know.”
Altamirez explained that after the initial altercation
with Sitani, Chavez came to his house and “kept wanting to
smoke them with me.” Altamirez advised Chavez to wait at
least a week to avoid suspicion. Ultimately, however, “[w]e
didn’t wait a week, we waited like three or two days fool.”
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Altamirez explained that on October 31, Chavez
“pulled up and said, ‘[h]ey fool give me that shit dog, like,
you know, like, I’m going to look for this fool.’ I was like,
‘Alright fool, you look for the dog just bring it back.’ I
personally did not think he was going to come back. I
thought he was going to smoke him and get on or not smoke
him and still look for him.” The agent then clarified, “So,
when he came to you, you already knew he was going to
smoke that fool?” Altamirez replied, “Yeah fool, but no
questions asked you know.” Chavez left; when he returned
later he told Altamirez, “I did it, I did it!”
The agent asked whether Altamirez regretted his
involvement in the shooting. Altamirez stated, “If you think
about it fool. I’m like an accessory to murder you know.”
Altamirez later stated, “I don’t feel sorry for that fool dog,
even though I could have prevented it. Naw, fool, I don’t feel
sorry for that fool.”
DISCUSSION
Altamirez contends that the drive-by murder special
circumstance, as applied to an aider and abettor, required
the jury to find that Altamirez was aware Chavez intended
to kill Sitani by shooting at him from inside a car, and that
Altamirez had the intent to aid, abet, or assist Chavez in
committing the murder by means of a drive-by shooting.
Based on this interpretation of the statutory scheme,
Altamirez argues the jury was incorrectly instructed to find
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the special circumstance allegation true based solely on
Chavez’s intent to commit murder by shooting from a car at
Sitani. We conclude the statutory scheme governing special
circumstance allegations, as it has been interpreted by the
Supreme Court, does not require an aider and abettor to
have intended that the murder be committed by means of a
drive-by shooting, only that he had the intent to kill and the
actual perpetrator committed the murder by means of a
drive-by shooting. Therefore, there was no instructional
error.
A. Standard of Review
“‘Under settled canons of statutory construction, in
construing a statute we ascertain the Legislature’s intent in
order to effectuate the law’s purpose. [Citation.] We must
look to the statute’s words and give them their usual and
ordinary meaning. [Citation.] The statute’s plain meaning
controls the court’s interpretation unless its words are
ambiguous.’ [Citation.]” (People v. Robinson (2010) 47
Cal.4th 1104, 1138.)
“We determine whether a jury instruction correctly
states the law under the independent or de novo standard of
review. [Citation.] Review of the adequacy of instructions is
based on whether the trial court ‘fully and fairly instructed
on the applicable law.’ [Citation.] ‘“In determining whether
error has been committed in giving or not giving jury
instructions, we must consider the instructions as a whole
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. . . [and] assume that the jurors are intelligent persons and
capable of understanding and correlating all jury
instructions which are given.” [Citation.]’ [Citation.]
‘Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.’ [Citation.]”
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
B. Applicable Law
The drive-by murder special circumstance set forth in
subdivision (a)(21) of section 190.2 requires, “The murder
was intentional and perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person
or persons outside the vehicle with the intent to inflict
death.” (§ 190.2, subd. (a)(21).)
To apply a special circumstance to an aider and
abettor, it must be proved that the person had the intent to
kill as follows: “Every person, not the actual killer, who,
with the intent to kill, aids, abets, counsels, commands,
induces, solicits, requests, or assists any actor in the
commission of murder in the first degree shall be punished
by death or imprisonment in the state prison for life without
the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found
to be true under Section 190.4.” (§ 190.2, subd. (c).)
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C. Relevant Jury Instructions
The trial court introduced the special circumstance
allegation by instructing the jury pursuant to CALJIC No.
8.80.1 as follows in pertinent part: “If you find a defendant
in this case guilty of murder of the first degree, you must
then determine if the following special circumstance is true
or not true: that the murder was perpetuated by means of
discharge of a firearm from a motor vehicle at a person
outside the vehicle. [¶] . . . [¶] If you find that defendant,
Brian Altamirez[,] was not the actual killer of a human
being[,] you cannot find the special circumstance to be true
as to that defendant unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted Jesus Chavez in the commission of the
murder in the first degree[.] [¶] You must decide separately
as to each of the defendants the existence or nonexistence of
each special circumstance alleged in this case.”
The trial court instructed the jury on the elements of
the drive-by murder special circumstance pursuant to
CALJIC No. 8.81.21 as follows: “To find that the special
circumstance referred to in these instructions as murder by
means of an intentional discharge of a firearm from a motor
vehicle is true, it must be proved: [¶] 1. The murder was
perpetrated by means of discharging a firearm from a motor
vehicle; [¶] 2. The perpetrator intentionally discharged the
firearm at another person or persons outside the vehicle; and
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[¶] 3. The perpetrator, at the time he discharged the
firearm, specifically intended to inflict death.”
D. Analysis
Altamirez does not dispute that the drive-by murder
special circumstance applies to an aider and abettor, and the
jury instructions that were given required finding Altamirez
shared the specific intent to kill Sitani. But he contends
that the statutory scheme additionally requires an aider and
abettor to share the perpetrator’s intent to commit the
murder by means of discharging a firearm from a motor
vehicle, intentionally at another person outside the vehicle,
with the intent to inflict death. We are unaware of any
authority expressly on point, but the California Supreme
Court has construed the relevant statutory scheme in a
closely analogous context in a manner that precludes the
argument Altamirez makes.
We begin with the statutory scheme. Section 190.2,
subdivision (c), expressly provides: “Every person, not the
actual killer, who, with the intent to kill, aids, abets, . . . or
assists any actor in the commission of murder in the first
degree shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if one or
more of the special circumstances enumerated in subdivision
(a) has been found to be true under Section 190.4.” (Italics
added.) The drive-by murder special circumstance states:
“The murder was intentional and perpetrated by means of
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discharging a firearm from a motor vehicle, intentionally at
another person or persons outside the vehicle with the intent
to inflict death.” (§ 190.2, subd. (a)(21), italics added.)
Under the plain language of the statutes, section 190.2,
subdivision (c), applies to any person who, with the intent to
kill, aids and abets first degree murder when the murder is
committed by shooting from a vehicle with the intent to
inflict death. As shown by the italicized language, both the
statute governing aider and abettor liability for special
circumstances and the drive-by murder special circumstance
provision explicitly state that the mens rea required is the
intent to kill. Unlike other special circumstance provisions
that include other mens rea in addition to the intent to kill,
the only mens rea that the aider and abettor of a drive-by
murder must share with the actual perpetrator is the intent
to kill. Therefore, a person can be convicted of first-degree
murder as an aider and abettor, and be liable for a special
circumstance finding, so long as that person harbored the
intent to kill.
In People v. Johnson (2016) 62 Cal.4th 600, 629–930
(Johnson), the California Supreme Court rejected a claim
that the lying-in-wait special circumstance for an aider and
abettor of murder required evidence that the aider and
abettor intended the murder to be committed by means of
lying in wait. The lying-in-wait special circumstance at
issue in Johnson, like the drive-by murder special
circumstance at issue here, is one of the enumerated
provisions in section 190.2 that provides for enhanced
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punishment if an intentional murder is committed by a
specific means (§ 190.2, subd. (a)(15) [“defendant
intentionally killed the victim by means of lying in wait”]).
The Johnson court stated, “A lying-in-wait special
circumstance can apply to a defendant who, intending that
the victim would be killed, aids and abets an intentional
murder committed by means of lying in wait. (§ 190.2,
subds. (a)(15), (c); People v. Bonilla (2007) 41 Cal.4th 313,
331–332 [(Bonilla)] [relying on identical language in § 190.2,
former subd. (b) as the statutory basis for an aider and
abettor’s liability].) In this factual setting, the questions are
whether the defendant, with the intent to kill, aided and
abetted the victim’s killing, and whether the actual killer
intentionally killed the victim by means of lying in wait.
([]Bonilla, supra, at p. 331.)” (Johnson, supra, at p. 630.)
The Johnson court, in reviewing the elements necessary to
apply the provision, did not conclude that the aider and
abettor had to intend for the victim to be killed by means of
lying in wait in order for the special circumstance to apply.
Altamirez attempts to distinguish Johnson by
characterizing his contention as a failure to properly instruct
the jury, whereas the defendant in Johnson challenged the
sufficiency of the evidence. This distinction does not
undermine the application of Johnson here: the Johnson
court necessarily determined the elements of the charged
crime in order to evaluate the sufficiency of the evidence
presented to establish those elements. The Johnson court
did not find an aider and abettor’s intent that the murder be
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carried out by a specific means (there, lying in wait) was an
element of the crime. It follows that if the statutory scheme
does not require the aider and abettor to intend that the
murder be carried out by a specific means, there is no error
in a jury instruction that does not require the jury to find
such intent.
The drive-by murder special circumstance is also
similar in this regard to the financial gain special
circumstance which applies to a person who hires a hitman.
In People v. Battle (2011) 198 Cal.App.4th 50 (Battle), the
appellate court considered an instructional error claim
related to the financial gain special circumstance. Section
190.2, subdivision (a)(1), states the financial gain special
circumstance: “The murder was intentional and carried out
for financial gain.” The defendant contended the trial court
erroneously instructed the jury that the hirer of a murderer
is subject to the financial gain special circumstance even if
the hirer’s motive is not financial gain. The Battle court
held, “[i]t is enough that (1) the nonkiller hired another to
kill, (2) the hirer intended to kill, and (3) the actual killer
was motivated by financial gain.” (Battle, supra, at p. 84.)
Moving beyond the statutes at issue here, Altamirez
notes that recent developments in the law emphasize the
need for consideration of individual culpability to ensure
proportionate sentencing, citing the California Supreme
Court’s decision in People v. Chiu (2014) 59 Cal.4th 155
(Chiu). Chiu, however, is distinguishable. The Chiu court
held that “an aider and abettor may not be convicted of first
13
degree premeditated murder under the natural and probable
consequences doctrine.” (Id. at pp. 158–159.) The drive-by
shooting element of the special circumstance in this case
addresses a different consideration than the premeditation
at issue in Chiu. Unlike premeditation, drive-by shooting is
not a mental state. The drive-by shooting element is the
means by which the murder is committed. (Cf. People v.
Hyde (1985) 166 Cal.App.3d 463, 475 [when the means of a
murder are by lying in wait, the means establish the murder
as equivalent to premeditated murder without additional
evidence of the defendant’s mental state].) The drive-by
shooting element constitutes conduct. Concern about the
actual killer’s “subjective and personal” mental state as
required for premeditated murder is not at issue with regard
to the special circumstance of drive-by murder.
We acknowledge that a special circumstance true
finding that subjects an aider and abettor to a sentence of
life without the possibility of parole, or even death, in
circumstances where that aider and abettor did not intend or
even know about the conduct underlying that finding may be
a harsh result. We feel compelled, however, to apply the
construction given to section 190.2 by the California
Supreme Court. Further, an aider and abettor under the
drive-by murder special circumstance must personally
harbor the intent to aid and abet in the killing. The
defendant shares the same mens rea as the actual
perpetrator—the intent to kill. This shared intent makes
the argument less compelling for reduced culpability based
14
on a lack of interest in, or even willful ignorance of, an
accomplice’s planned methods.
We conclude that an aider and abettor need not have
the intent to carry out the killing by drive-by shooting to be
culpable for the drive-by murder special circumstance; the
prosecution need only prove the aider and abettor shared the
intent to kill and that the actual killer intentionally killed
the victim by means of drive-by murder. (Cf. Johnson,
supra, 62 Cal.4th at p. 630; Bonilla, supra, 41 Cal.4th at
p. 331.) As a result, no instructional error has been shown.
Altamirez also contends based on the same erroneous
statutory analysis that there was no substantial evidence he
intended Chavez to kill Sitani by means of a drive-by
shooting. As discussed above, liability for aiding and
abetting the drive-by murder special circumstance did not
require evidence that Altamirez intended the killing to be
done by means of a drive-by shooting, and he does not
contend that the evidence was otherwise not sufficient to
support the jury’s finding. Therefore, this contention must
be rejected as well.
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DISPOSITION
The judgment is affirmed.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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