Filed 6/8/21 P. v. Guzman CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077918
Plaintiff and Respondent,
(Super. Ct. No. 17CR04410E)
v.
ANGEL HERMAN AVILA GUZMAN, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County. Carol K.
Ash, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney
General, Julie A. Hokans and Kathryn L. Althizer, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
Angel Herman Avila Guzman was convicted by jury for his role in a gang-related
assault with a deadly weapon occurring in jail (Pen. Code,1 §§ 245, subd. (a)(1) &
1 All statutory references are to the Penal Code.
186.22, subd. (b)). On appeal, he contends the court’s jury instruction describing an
uncharged conspiracy erroneously lowered the prosecution’s burden of proof.
The People concede the error but dispute its prejudice. We conclude the jury
instruction at issue was both in error and prejudicial. We will reverse the judgment.2
BACKGROUND
Charges
The Merced County District Attorney charged Guzman with three crimes:
Attempted murder (§§ 187 & 664, Count 1), assault with a deadly weapon (§ 245,
subd. (a)(1), Count 2), and possessing a weapon in jail (§ 4502, subd. (a), Count 3). It
was also alleged the crimes were gang-related (§ 186.22, subd. (b)) and the victim
suffered great bodily injury (§ 12022.7, subd. (a)).
Trial Evidence3
The victim testified he was attacked by several other men he was housed with in
jail.4 He suffered significant injuries including “numerous small puncture wounds”
across his back. He identified Guzman as one of his assailants but was unaware if
Guzman utilized a weapon in the attack.
Verdict and Sentence
Guzman was convicted of assault with a deadly weapon (Count 2) but acquitted of
attempted murder and possessing a weapon (Counts 1 and 3). The gang-related crime
and great bodily injury enhancements were found true. He was sentenced to serve
12 years in prison.
2 Additional claims related to fines and restitution are moot.
3Much of the evidence is not relevant to the issues on appeal. Our summary is
appropriately confined to the issues presented.
4 Five other men were charged for the same crimes.
2.
DISCUSSION
The jury was instructed Guzman was guilty if he 1) directly committed a crime,
2) aided and abetted a crime, or 3) a co-conspirator committed a crime to further an
uncharged conspiracy to commit murder. Only the conspiracy instruction is at issue.
Guzman argues the conspiracy instruction failed to adequately describe the
elements necessary to prove assault with a deadly weapon. The People agree but urge the
error is harmless. We accept the concession and find the error prejudicial.
I. Instructional Error
To explain the uncharged conspiracy theory, the court instructed the jury with the
following relevant language:
“To prove that the defendant is guilty of the crimes charged in
Count[s] 1, 2 and 3, the People must prove that:
1. The defendant conspired to commit [murder];
2. A member of the conspiracy committed an assault and/or
possessed a sharp instrument to further the conspiracy;
AND
3. Committing an assault and/or possessing a sharp
instrument was a natural and probable consequence of the
common plan or design of the crime the defendant
conspired to commit.”5
Conspicuously, the instruction does not define, identify, or otherwise describe assault
with a deadly weapon.
Neither assault nor possession of a sharp instrument constitutes assault with a
deadly weapon. Even assault combined with simultaneous weapon possession does not
equal assault with a deadly weapon. Assault with a deadly weapon requires utilizing the
5 Conspiracy and natural and probable consequences were defined elsewhere in
the instructions.
3.
weapon in a manner likely to cause injury. (People v. Marsh (2019) 37 Cal.App.5th 474,
484; § 245, subd. (a)(1).) The uncharged conspiracy instruction in this case errs because
it inadequately explains assault with a deadly weapon.
II. Prejudice
Alternative-theory error occurs “when a court instructs on [multiple] theories of
guilt, one [or more] correct, and the other[s] incorrect.” (People v. Aledamat (2019)
8 Cal.5th 1, 7.) When the error is a legal invalidity, a “reviewing court must reverse the
conviction unless, after examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error was harmless beyond a
reasonable doubt.” (Id. at p. 13.) The court’s review is not limited to “an examination of
the jury’s findings as reflected in the verdict itself ….” (Ibid.)
The People bear the burden “to ‘prove beyond a reasonable doubt that the error …
did not contribute to the verdict obtained.’ ” (People v. Mower (2002) 28 Cal.4th 457,
484.) “ ‘The inquiry … is not whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the guilty verdict actually rendered
in this trial was surely unattributable to the error .’ ” (People v. Thompkins (2020)
50 Cal.App.5th 365, 400.)
In arguing alternative-theory error in this case is harmless, the People claim “the
record shows that the jury relied upon the aider and abettor theory of liability in
convicting … of assault with a deadly weapon ….” Specifically, the People argue the
jury’s acquittals on attempted murder and weapon possession “clearly” reflect the fact the
jury rejected direct liability.
The People’s argument continues: “[T]he jury’s verdicts show that it did not
convict under [the uncharged conspiracy] theory of liability” because that theory required
finding an agreement to commit murder but, by acquitting of attempted murder, the jury
rejected “intent to kill ….” This leaves aiding and abetting as the remaining theory of
guilt—which the People conclude is sufficient to validate the verdict.
4.
We disagree. The People’s argument is speculative because “ ‘[a]n acquittal of
one or more counts shall not be deemed an acquittal of any other count.’ ” (People v.
Palmer (2001) 24 Cal.4th 856, 861; § 954.) Were we to ignore that rule and nonetheless
conclude the verdict was inconsistent based on the acquittals, the People would still not
prevail because “ ‘ “an inherently inconsistent verdict is allowed to stand ….” ’ ”
(People v. Abilez (2007) 41 Cal.4th 472, 512–513.) Inconsistent verdicts are permissible
because “[a]n inconsistency may show no more than jury lenity, compromise, or
mistake ….” (People v. Lewis (2001) 25 Cal.4th 610, 656.)
In sum, there is no concrete basis in the record upon which to conclude the jury
found guilt on a valid legal theory.6 Because speculation is not proof beyond a
reasonable doubt, we find the People have not discharged their burden to prove the error
harmless.7
DISPOSITION
The judgment is reversed.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P.J.
POOCHIGIAN, J.
6 The jury was also instructed, “Each of the counts charged in this case is a
separate crime. You must consider each count separately and return a separate verdict for
each one.” (CALCRIM No. 3515.)
7 The People may retry Guzman upon remand.
5.