Filed 3/18/22 P. v. Morales CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B253249
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA098830)
v.
CARLOS NUMBERTO
MORALES et al.,
Defendants and
Appellants.
APPEALS from a judgment of the Superior Court of
Los Angeles County, Bruce F. Marrs, Judge. Jojola’s and
Sanchez’s judgments are reversed in part and affirmed in part
and remanded with directions.
Sharon Fleming; and Christopher Nalls, under
appointment by the Court of Appeal, for Defendant and Appellant
Phillip Joseph Jojola.
Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant Robert Epifano Sanchez.
Rob Bonta, Xavier Becerra and Kamala D. Harris,
Attorneys General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Idan Ivri, Victoria B. Wilson, Mark E. Weber,
David F. Glassman, David Wildman, Amanda V. Lopez and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.
_____________________
Phillip Joseph Jojola and Robert Epifano Sanchez were
convicted of conspiracy to commit murder, attempted willful,
deliberate and premeditated murder, attempted extortion and
false imprisonment with true findings the crimes were committed
to benefit a criminal street gang. In prior opinions we explained
their conspiracy convictions must be reversed because of error in
the jury instructions. Jojola and Sanchez now argue, the
Attorney General concedes, and we agree that the attempted
murder convictions, as well as the criminal street gang
enhancements, must be reversed because of recent ameliorative
legislation that applies to their case.
PROCEDURAL BACKGROUND
Jojola, Sanchez, Arthur John Quesada and Carlos
Numberto Morales, all members of the same criminal street
gang, attempted to extort money from Andres Vargas by
threatening to harm him if he did not pay them $300. After
Vargas did not pay, Morales shot Vargas multiple times,
seriously injuring him.
2
A jury convicted all four men of conspiracy to commit
murder (Pen. Code, § 182, subd. (a)(1));1 attempted willful,
deliberate and premeditated murder (§§ 187, subd. (a), 664,
subd. (a)); attempted extortion (§ 524); and false imprisonment.
The jury found true criminal street gang enhancement
allegations on all counts (§ 186.22, subd. (b)) and firearm-use
enhancement allegations on the conspiracy and attempted
murder counts (§ 12022.53, subdivisions (d) and (e)(1)) against
the four defendants, as well as a great bodily injury enhancement
allegation (§ 12022.7, subd. (b)) against Morales. The trial court
sentenced each defendant to 25 years to life for conspiracy to
commit murder, plus 25 years to life for the firearm-use
enhancement, and stayed the sentence on the remaining counts
pursuant to section 654.
In a nonpublished opinion filed in February 2016 we
affirmed the judgment as to Morales. We reversed Quesada’s,
Jojola’s and Sanchez’s convictions for conspiracy to commit
murder based on instructional error, but affirmed their
convictions for attempted premeditated murder, attempted
extortion and false imprisonment, rejecting their arguments
there was insufficient evidence to support the convictions on the
conspiracy and attempted murder counts and the true findings on
the criminal street gang enhancement allegations.
Morales’s petition for review was denied by the California
Supreme Court on May 25, 2016. The judgment as to him has
long-since been final, and he is not a party to this appeal.
Quesada’s, Jojola’s and Sanchez’s petitions for review were
granted by the Supreme Court on May 25, 2016, with further
action deferred pending consideration in a case already before the
1 Statutory references are to this code.
3
Court whether, to convict an aider and abettor of attempted
premeditated murder under the natural and probable
consequences doctrine, both premeditation and attempted
murder must have been reasonably foreseeable by an individual
committing the target offense. Before that case was decided,
however, the Legislature enacted Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), which
substantially modified the law relating to accomplice liability for
murder, eliminating the natural and probable consequences
doctrine as a basis for finding a defendant guilty of murder and
significantly narrowing the felony-murder exception to the malice
requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e);
see People v. Lewis (2021) 11 Cal.5th 952, 963 (Lewis); People v.
Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The Supreme
Court transferred the case to us with directions to vacate our
decision and to reconsider it in light of Senate Bill 1437.
In a second nonpublished opinion, filed in September 2019,
based on prior decisions from this and other courts of appeal, we
rejected Jojola and Sanchez’s arguments that, as a matter of
either statutory construction or equal protection analysis,
enactment of Senate Bill 1437 precluded convictions for
attempted murder under the natural and probable consequences
doctrine. Accordingly, we again affirmed Jojola’s and Sanchez’s
convictions for attempted premeditated murder, as well as for
attempted extortion and false imprisonment, and reversed their
convictions for conspiracy to commit murder. Because Quesada
had died while his petition for review was pending in the
Supreme Court, we dismissed his appeal as moot.
Jojola and Sanchez once more petitioned for review in the
Supreme Court. Following another grant-and-hold order, on
4
December 29, 2021 the Court transferred the matter with
directions to vacate our decision and reconsider the cause in light
of another new piece of legislation, Senate Bill No. 775 (Stats.
2021, ch. 551) (Senate Bill 775), which extended the ameliorative
provisions of Senate Bill 1437 to attempted murder and
voluntary manslaughter.
In supplemental briefing Jojola and Sanchez contend, in
light of Senate Bill 1437 and Senate Bill 775, their convictions for
attempted murder under the natural and probable consequences
doctrine must be reversed. They also argue, pursuant to
Assembly Bill No. 333 (2020-2021 Reg. Sess.) (Stats. 2021,
ch. 699) (Assembly Bill 333), which increased the proof
requirements for true findings on criminal street gang
enhancement allegations under section 186.22, the jury’s gang
findings and related firearm-use enhancements must also be
reversed. The Attorney General essentially agrees with Jojola
and Sanchez and requests that we reverse the attempted murder
convictions and remand the matter to provide the prosecution an
opportunity, if it wishes to do so, to retry the attempted murder
charges and gang enhancement allegations on legally viable
theories.
FACTUAL BACKGROUND
The evidence at trial established that Jojola, Sanchez,
Morales and Quesada were members of the 18th Street gang.
Vargas and his friend Bellanira Figueroa knew Jojola, Sanchez,
Morales and Quesada but were not members of their gang. The
events leading to the shooting of Vargas occurred over the course
of three days in July 2012.
On Friday, July 6, 2012, Vargas and Figueroa went to
Quesada’s house in Baldwin Park to smoke methamphetamine
5
with Morales, Quesada, Jojola and Sanchez. (Quesada’s mother
owned the house; Jojola lived there with Quesada and others.)
After smoking methamphetamine Morales asked Vargas to take
him for a ride in Vargas’s car. Vargas, accompanied by Figueroa,
drove Morales to El Monte. Morales brought with him a wig, a
.357 Smith & Wesson revolver and a pillowcase. Upon arriving
in El Monte, Morales got out of Vargas’s car, robbed a pizza store,
ran back to the car and directed Vargas to drive away. Morales,
Vargas and Figueroa returned to Quesada’s house and smoked
more methamphetamine with Quesada, Jojola and Sanchez.
Later that night Vargas drove Morales and Figueroa to
another pizza store in South El Monte, which Morales robbed.
After the robbery they drove to a house in Monterey Park where
Vargas’s friend Justin lived so Morales could sell Justin
methamphetamine. Vargas knew, but did not tell Morales, that
the house was in a “hot” area—that is, an area the police
frequently patrolled.
When they arrived at Justin’s house, Justin was not home.
Morales and Vargas went inside to await Justin’s return, while
Figueroa stayed in Vargas’s car. As they were waiting, a police
car drove by; and the officer inside flashed a light on Justin’s
house. By text message Figueroa alerted Vargas to the police’s
presence. Minutes later, Morales left the house, got into the
driver’s seat of Vargas’s car and drove away with Figueroa, while
Vargas remained in the house.
The police officer, who had continued to watch Justin’s
house, followed Morales in his patrol car. The officer activated
his patrol car’s lights to stop Morales for a traffic violation.
Morales refused to comply, leading to a police chase. Morales
successfully avoided the pursuit and returned to Justin’s house.
6
He parked the car nearby and ran away, leaving his cell phone
inside the car.
The next evening Vargas and Figueroa drove to Quesada’s
house to return Morales’s cell phone to him. Vargas went inside
and returned the phone, while Figueroa waited in the car.
Morales, Quesada, Sanchez and Jojola were all in the house at
the time. While in Jojola’s room Morales and Quesada accused
Vargas of “setting [Morales] up” with the police the previous
night. They then escorted Vargas to the backyard to continue the
discussion. In the backyard Morales and Quesada told Vargas
the setup was a sign of disrespect, said Vargas had disrespected
not just Morales but all of them, and demanded Vargas pay $300
for his disrespect. Vargas did not have the money with him.
Morales got Figueroa from Vargas’s car, brought her to the
backyard and sat her next to Vargas. Vargas told her the men
“were asking him for $300 . . . [b]ecause [Morales] felt
disrespected.”
Morales and Quesada repeated the demand for $300 and
threatened that Vargas needed to get the money “or else.”
Vargas understood this to be a threat on his life. The threat was
accompanied by violence: Quesada struck Vargas with a closed
fist to the back of his head and hit Vargas twice more with blows
to his forehead. Morales and Quesada told Vargas he could not
leave until they got the money and explained Figueroa would
have to raise the money for him.
Morales told Figueroa she had until 1:18 a.m. to get the
money (a deadline subsequently extended to 3:18 a.m.), and, if
she did not, it would be her “ass” too. Quesada told Jojola to walk
Figueroa out to Vargas’s car. As Jojola walked her out, he told
her, “Everything will be okay. Just get the money.” Figueroa did
7
not call the police once she left the house because she believed
defendants would kill Vargas if she did.
In the early morning hours of July 8, 2012 Figueroa
attempted to raise the money for Vargas. During that time
Morales dragged Vargas to an area in the back of the house,
where Morales and Quesada assaulted Vargas once again,
punching and kicking him while he was on the ground.
Throughout the early morning Morales and Jojola
continued to follow up with Figueroa about the money. Jojola
sent a series of increasingly ominous text messages, warning
Figueroa that time was running out. Figueroa was never able to
raise the $300.
For the rest of the day Vargas’s movements were closely
monitored and controlled. Morales took Vargas away from the
house several times, using Jojola’s car. Each time Morales kept
to the same ritual, requiring Vargas to walk in front of him as
Morales followed, holding his gun. On the final trip Morales told
Vargas he was going to drive him to Vargas’s house, but instead
took him to a secluded area in the mountains. Morales stopped
the car and ordered Vargas to get out. Vargas pleaded with
Morales, but Morales insisted Vargas leave the car. As Vargas
took his first step out, Morales shot him twice, striking him in
the buttocks. Morales then left the car and shot Vargas four
more times, striking him in the hip, groin and chest. Vargas
survived the shooting, but sustained life-long, debilitating
injuries.
During the police investigation into the shooting, Vargas
identified Morales, Quesada, Jojola and Sanchez as being
involved. Figueroa described the perpetrators in the following
manner: (1) Morales was “the main person running the show,”
8
who “was basically taxing [Vargas] the $300”; (2) Quesada was
the man who “hit [Vargas] in the face”; (3) Sanchez was the man
who “didn’t allow [Vargas] to leave”; and (4) Jojola “was the one
who was texting and calling” Figueroa.
DISCUSSION
1. Senate Bill 775 Requires Reversal of the Convictions for
Attempted Murder
Senate Bill 1437 amended section 188 to provide in
subdivision (a)(3) that, except as provided in section 189,
subdivision (e), which governs felony murder, “in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” As amended,
section 188, subdivision (a)(3), “bars a conviction for first or
second degree murder under a natural and probable
consequences theory.” (Gentile, supra, 10 Cal.5th at p. 846.)
Senate Bill 775, which amended section 1170.95, clarified
that individuals convicted of attempted murder under the natural
and probable consequences doctrine “are permitted the same
relief as those persons convicted of murder under the same
theories.” (Senate Bill 775 (Stats. 2021, ch. 551) § 1, subd. (a);
see § 1170.95, subd. (a).) That is, because of Senate Bill 1437’s
amendments to section 188 barring imputed malice based solely
on participation in another crime, an individual can no longer be
found guilty of attempted murder under the natural and probable
consequences doctrine. Senate Bill 775 also added
section 1170.95, subdivision (g), providing that a person convicted
of murder, attempted murder or voluntary manslaughter whose
conviction is not final may challenge on direct appeal the validity
of that conviction based on Senate Bill 1437’s changes to
9
sections 188 and 189. (Previously, relief under section 1437 was
limited to the postjudgment petition process specified in
section 1170.95.)
The jury at Jojola and Sanchez’s trial was instructed
(correctly, at the time) on their potential liability for attempted
murder under both a theory of direct aiding and abetting and the
natural and probable consequences doctrine. The prosecutor
relied primarily on the latter theory—that Jojola and Sanchez
should be convicted of attempted willful, deliberate and
premeditated murder because they had aided and abetted the
attempted extortion and false imprisonment of Vargas (the target
offenses), and Morales’s attempted murder of Vargas (the
nontarget offense) was the natural and probable consequence of
the target offenses.
As the Attorney General explains in his supplemental brief,
when a jury has been instructed with both a legally correct
theory (direct aiding and abetting) and a now-incorrect legal
theory (natural and probable consequences), a conviction must be
reversed unless, “after examining the entire cause, including the
evidence, and considering all relevant circumstances, [the
reviewing court] determines the error was harmless beyond a
reasonable doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 13.)
The Attorney General agrees with Jojola and Sanchez, as do we,
that the record in this case does not permit us to determine
beyond a reasonable doubt that the jury found Jojola and
Sanchez guilty of attempted murder based on direct aiding and
abetting principles. To the contrary, it seems evident, based on
the evidence concerning the manner in which the murder took
place and the nature of Jojola’s and Sanchez’s involvement in the
events of July 6 to 8, 2012, that they were convicted of attempted
10
murder under the now-invalid natural and probable
consequences doctrine.
Because we reverse the attempted murder convictions due
to a retroactive change in the law, not for insufficient evidence,2
2
As we explained in our earlier opinions, the evidence
supported the inference all four defendants agreed to extort $300
from Vargas for showing disrespect by taking Morales to a “hot”
house where there was ongoing police surveillance. Vargas was
told his actions were a sign of disrespect not just for Morales but
for “all of them”; and the four men appeared to operate in a
coordinated manner when they directed Vargas to the backyard
of the Quesada house, positioning themselves around him in an
intimidating way and demanding he pay them “or else.”
Vargas testified he understood “or else” to be a threat on
his life, and the jury reasonably could have concluded a mortal
threat was implicit in those words. Indeed, after making the
threat, the men demonstrated their seriousness by falsely
imprisoning Vargas, repeatedly beating him and imposing
deadlines (1:18 a.m. and 3:18 a.m.) that suggested gang-style
consequences for failure to comply.
Although it was Morales and Quesada who initially
demanded the $300 payment, Vargas testified Jojola also said
something about the money while he was surrounded in the
backyard. According to Figueroa, when she was allowed to leave
the house to raise the money, Sanchez told her Vargas could not
leave until payment was made. While Figueroa was out, Jojola
sent her threatening text messages, using terminology that
emphasized this was an 18th Street gang matter.
According to the People’s gang expert, if the gang issued an
ultimatum to “pay us $300 or else,” the gang would follow
through with the threat to avoid appearing weak. As gang
members, Jojola and Sanchez could be expected to have known
this much about gang culture. They also could be expected to
11
retrial remains theoretically possible if the People believe the
evidence would support convictions on the still-viable direct
aiding and abetting theory. (See People v. Chiu (2014) 59 Cal.4th
155, 168 [allowing the People to retry charge of first degree
murder on a direct aiding and abetting theory when jury may
have improperly based prior verdict on natural and probable
consequences doctrine]; see also People v. Gutierrez (2018)
20 Cal.App.5th 847, 857 [permitting new trial on charge of
unauthorized taking of an automobile when evidence of value of
automobile not introduced at original trial and Supreme Court
had not yet ruled on Proposition 47’s applicability to Vehicle Code
section 10851].) Accordingly, we remand the case to allow the
People to elect whether to retry Jojola and Sanchez (or either of
them) as direct aiders and abettors of the attempted murder of
Vargas.
2. Assembly Bill 333 Requires Reversal of the True
Findings on the Criminal Street Gang Enhancements
Section 186.22. subdivision (b), provides for enhanced
punishment when a defendant is convicted of a felony committed
“for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members.” Assembly
Bill 333 made a number of significant modifications to the
requirements for proving a criminal street gang enhancement.
The Attorney General agrees with Jojola and Sanchez, and we
have previously held (see People v. Delgado (2022) 74 Cal.App.5th
1067), that, under the principles enunciated in In re Estrada
have known, based on the evidence in the record, that Morales
had a gun ready to use if necessary.
12
(1965) 63 Cal.2d 740, Assembly Bill 333’s amendments to
section 186.22 apply retroactively to defendants whose
convictions are not yet final. (See also People v. E.H. (2022)
75 Cal.App.5th 467.)
Previously, proof of a “pattern of criminal gang activity” as
defined by section 186.22, subdivision (e), required evidence of
two or more identified predicate offenses, “provided at least one of
these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions,
or by two or more persons.” As amended, subdivision (e) now
requires proof that (i) the last offense used to show the pattern of
criminal gang activity occurred within three years of the date the
currently charged offense is alleged to have been committed;
(ii) the offenses were committed on separate occasions or by
two or more gang members, rather than simply “persons”; (iii) the
offenses commonly benefited a criminal street gang, and the
common benefit was more than reputational; and (iv) the
currently charged offense cannot be used to establish the pattern.
New section 186.22, subdivision (g), provides “to benefit,
promote, further, or assist means to provide a common benefit to
members of a gang where the common benefit is more than
reputational.” The new subdivision provides as examples of a
common benefit that is more than reputational “financial gain or
motivation, retaliation, targeting a perceived or actual gang rival,
or intimidation or silencing of a potential current or previous
witness or informant.”
Not surprisingly, the gang evidence at Jojola and Sanchez’s
trial, presented under the old law, fell short of meeting these new
requirements. The prosecution’s gang expert described
13
two predicate offenses by 18th Street gang members: a 2010
conviction for assault with a firearm and a 2008 conviction (more
than three years prior to the July 2012 shooting and related
crimes) for witness intimidation and extortion. The Attorney
General concedes this evidence did not establish the
requirements for two predicate offenses as specified in Assembly
Bill 333.
The gang expert also provided his opinion, in response to a
hypothetical question, that the crimes against Vargas were
committed for the benefit of, and in association with, the
18th Street gang. In discussing the benefit to the gang, the
expert explained respect to gang members means everything:
“[W]hen they feel disrespected, then it’s not just individual, it’s
the 18th Street as a whole gang that is disrespected.” The
shooting of Vargas demonstrated gang members meant business,
the expert continued, which would lead to fear in the gang’s
rivals. That testimony, the Attorney General acknowledges, falls
short of proving the attempted extortion and shooting of Vargas
were done to benefit, promote, further or assist the gang in a way
that was more than reputational.
If the prosecution elects to retry the attempted murder or
the conspiracy charges against Jojola and Sanchez, it will be
required to meet the new requirements of section 186.22 to prove
the gang enhancement allegations for those crimes. (Because it
was Morales, not Jojola or Sanchez, who fired a gun killing
Vargas, it was the true finding on the gang enhancement that
authorized imposition of a 25-year-to-life firearm enhancement
on their attempted murder convictions, pursuant to
section 12022.53, subdivisions (d) and (e)(1).) However, the
attempted extortion and false imprisonment convictions, which
14
are unchallenged on appeal, also included criminal street gang
enhancements. Because the evidence at trial failed to satisfy all
the new requirements for a criminal street gang enhancement,
we reverse the true findings on the enhancements as to those
counts as well, and remand to permit the prosecution to retry
them if it elects to do so. (See People v. E.H., supra,
75 Cal.App.5th at p. 478; People v. Eagle (2016) 246 Cal.App.4th
275, 280 [“[w]hen a statutory amendment adds an additional
element to an offense, the prosecution must be afforded the
opportunity to establish the additional element upon remand”];
People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2 [same];
see also People v. Chiu, supra, 59 Cal.4th at p. 168.)
3. Prejudicial Instructional Error Requires Reversal of the
Convictions for Conspiracy To Commit Murder
Jojola, Sanchez, Morales and Quesada were each charged
with conspiracy to commit the murder of Vargas. As to this count
the trial court instructed the jury using a variant of CALJIC
No. 8.69. The default phrasing of CALJIC No. 8.69 reflects the
twin specific intent requirements for conspiracy to commit a
particular offense, specifying that “[e]ach of the persons
specifically intended to enter into an agreement with one or more
other persons for that purpose,” and that “[e]ach of the persons to
the agreement harbored express malice aforethought, namely a
specific intent to kill unlawfully another human being.” (See
People v. Swain (1996) 12 Cal.4th 593, 600 [“‘Conspiracy is a
“specific intent” crime. . . . The specific intent required divides
logically into two elements: (a) the intent to agree, or conspire,
and (b) the intent to commit the offense which is the object of the
conspiracy. . . . To sustain a conviction for conspiracy to commit a
particular offense, the prosecution must show not only that the
15
conspirators intended to agree but also that they intended to
commit the elements of that offense,’” italics omitted].)
As read to the jury, however, the instruction in this case
stated in part, “In order to prove this crime, each of the following
elements must be proved: 1. Two or more persons entered into an
agreement to kill unlawfully another human being; 2. At least
two of the persons specifically intended to enter into an
agreement with one or more other persons for that purpose;
3. At least two of the persons to the agreement harbored express
malice aforethought, namely a specific intent to kill unlawfully
another human being; and 4. An overt act was committed in this
state by one or more of the persons who agreed and intended to
commit murder.” In their original appeal Jojola and Sanchez
argued, in so instructing the jury, the court committed prejudicial
error by failing to include the requirement that the jury must
find that each of them, not just any two of the coconspirators,
intended to kill Vargas. As we have held twice before, they are
correct (a conclusion the Attorney General does not dispute in the
current appeal).
As the Supreme Court held in People v. Garton (2018)
4 Cal.5th 485, 516, asking the jury to find specific intent for “at
least two” conspirators in a conspiracy with more than
two members, none of whom is feigning involvement, is error
because it “could potentially lead a jury to find an individual
conspirator guilty without finding that he or she possessed a
specific intent to agree or to kill.” (See People v. Petznick (2003)
114 Cal.App.4th 663, 681 [same erroneous CALJIC No. 8.69
instruction “permitted the jury to find defendant guilty of
conspiracy to commit murder without regard to whether or not he
16
personally intended to kill so long as they found that at least
two of the other participants harbored that intent”].)3
Because each defendant’s specific intent to commit murder
was an essential element of the charged conspiracy offense, we
assess whether the instructional error was harmless under the
beyond-a-reasonable-doubt standard of Chapman v. California
(1967) 386 U.S. 18, 24. (See People v. Brooks (2017) 3 Cal.5th 1,
69 [“‘[m]isdescription of an element of a charged offense is subject
to harmless error analysis and does not require reversal if the
misdescription was harmless beyond a reasonable doubt’”];
see also People v. Aledamat, supra, 8 Cal.5th at p. 11 [“the same
Chapman analysis of harmless error applies to alternative-theory
error as applies to other kinds of misdescription of the
elements”].) That is, Jojola’s and Sanchez’s convictions for
3 The written version of the instruction contained in the
clerk’s transcript on appeal read, “In order to prove this crime,
each of the following elements must be proved: [¶] 1. Two or
more persons entered into an agreement to kill unlawfully
another human being; [¶] 2. Each At least two of the persons
specifically intended to enter into an agreement with one or more
other persons for that purpose; [¶] 3. Each At least two of the
persons to the agreement harbored express malice aforethought,
namely a specific intent to kill unlawfully another human being;
and [¶] 4. An overt act was committed in this state by one or
more of the persons who agreed and intended to commit murder.”
(Italics added.)
Although the written version of an instruction generally
governs if there is a conflict between oral and written
instructions (see People v. Osband (1996) 13 Cal.4th 622, 717),
the written instruction here did nothing to correctly inform the
jury that the “each” language, not the “at least two” language,
applied.
17
conspiracy to commit murder must be reversed “unless the
reviewing court concludes beyond a reasonable doubt that the
error did not contribute to the verdict.” (People v. Chun (2009)
45 Cal.4th 1172, 1201.)
“[I]n order to conclude that an instructional error ‘“did not
contribute to the verdict”’ within the meaning of Chapman
[citation], we must ‘“find that error unimportant in relation to
everything else the jury considered on the issue in question, as
revealed in the record.”’” (People v. Brooks, supra, 3 Cal.5th at
p. 70.) The incorrect phrasing of CALJIC No. 8.69 here, which
permitted the jury to find Jojola and Sanchez guilty of conspiracy
to commit murder without regard to whether they personally
intended to kill Vargas, was far from unimportant. Indeed, the
jury was also instructed pursuant to CALJIC No. 6.11 that a
member of a conspiracy “is not only guilty of the particular crime
that to his knowledge his confederates agreed to and did commit,
but is also liable for the natural and probable consequences of
any crime [or] act of a co-conspirator to further the object of the
conspiracy, even though that crime [or] act was not intended as a
part of the agreed upon objective and even though he was not
present at the time of the commission of that crime [or] act”—
thereby reinforcing the erroneous concept that Jojola and
Sanchez could be guilty of conspiracy to commit murder even if
they did not intend to kill Vargas because they conspired with
Morales and Quesada to extort money from the victim.
The evidence that Jojola and Sanchez agreed with the plan
for Morales to kill Vargas, although sufficient to support their
conspiracy convictions as tried, was not so overwhelming that we
can say, beyond a reasonable doubt, the jury verdict would have
been the same had it been properly instructed. (See People v.
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Gonzalez (2012) 54 Cal.4th 643, 666 [appropriate test to
determine whether an instruction that erroneously omitted an
element of an offense was harmless is whether the record
establishes beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error]; People v. Mil
(2012) 53 Cal.4th 400, 417 [reviewing the record to determine if
“the record supports a reasonable doubt as to [the omitted]
element” of the offense].) Accordingly, the conspiracy convictions
must also be reversed.
DISPOSITION
The judgment and Jojola’s and Sanchez’s convictions for
conspiracy to commit murder and attempted willful, deliberate
and premeditated murder, together with the associated criminal
street gang and firearm-use enhancements, are reversed.
Their convictions for attempted extortion and false imprisonment
are affirmed but the related true findings on the criminal street
gang enhancement are reversed. The cause is remanded to
provide the People an opportunity to retry Jojola and Sanchez, or
either of them, on legally viable theories of conspiracy to commit
murder and attempted murder and to retry the criminal street
gang enhancements. If the People elect not to do so, Jojola and
Sanchez are to be resentenced in a manner that is consistent
with this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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