People v. Culuko

I respectfully dissent.

I disagree with nearly every aspect, published and unpublished, of the majority opinion. However, I will not elaborate on each of the many ways in which I disagree with the majority. In my view, the approach the majority sanctions in this case absolved the prosecution of its duty to present evidence that proves each defendant's guilt beyond a reasonable doubt. That, simply stated, is my primary disagreement and the focus of this dissent.

The facts of this case are distressing, to say the least. Joey Galindo, in his short and tragic life, was unquestionably subjected to severe physical abuse and ultimately died as a result of that abuse. The fact of the abuse is clear and undisputed. What is not clear is who was responsible, either directly or indirectly, for Joey's injuries and ultimately for his death. Because the prosecutor could not prove which defendant inflicted the injury that killed Joey or the circumstances under which that injury was inflicted, the prosecutor relied on the theory that one defendant must have punched Joey and, therefore, was guilty as the actual perpetrator of second degree murder, and that the other defendant was an aider and abettor in the target crime of felony child endangerment, of which murder was the natural and probable consequence. Although I have serious doubts about the validity of the theory, I will not discuss those concerns. Even if correct, I part company with the majority in their application of that theory to the facts of this case, for reasons I now explain.

1. THE PROSECUTION'S THEORY In an effort to prove both defendants guilty of murder, the prosecutor relied on the so-called natural and probable consequences theory of criminal responsibility which makes an aider and abettor in a target crime criminally responsible for an unintended crime committed by a coparticipant if the unintended crime is the natural and probable consequence of the originally agreed-upon target crime. As the Supreme Court explained inPeople v. Prettyman (1996) 14 Cal.4th 248 [58 Cal.Rptr.2d 827,926 P.2d 1013], a person who encourages or facilitates the commission of a crime is criminally responsible for that crime and "any other offense that was a `natural and probable consequence' of the crime aided and abetted." (Id. at p. 260.) "To convict a defendant of a nontarget crime as an accomplice under the `natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating [i.e., aiding and abetting] the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a `natural and probable consequence' of the target crime that the defendant assisted or encouraged." (People v. Prettyman, supra, at p. 254.)

The prosecutor's theory in this case was that both defendants engaged in a several-day course of conduct during which they each, individually and/or jointly, inflicted serious bodily injury on Joey and thereby each committed felony child endangerment.¹ Because both defendants allegedly abused Joey, the prosecutor asserted they were aiders and abettors of each other in committing felony child endangerment. According to the prosecutor's approach, as aiders and abettors in the target crime of felony child endangerment, defendants each were guilty of murder under the natural and probable consequences theory if one defendant, acting with express or implied malice, punched Joey and thereby committed second degree murder, and the other defendant aided and abetted in the target crime of felony child endangerment of which murder was a natural and probable consequence.

2. THE JURY INSTRUCTIONS In accordance with the above-noted theory, and at the prosecutor's request, the trial court instructed the jury, "In order to find a defendant guilty of the crime of murder as charged under Count I based upon aiding and abetting, you must be satisfied beyond a reasonable doubt that, number one, the crime of Felony Child Endangerment was committed, number two, the defendant aided and abetted the crime of Felony Child Endangerment, number three, a coprincipal in the crime of felony child endangerment committed the crime of Murder as charged under Count I, and four, the crime of murder was a natural and probable consequence of the commission of the crime of Felony Child Endangerment." According to the theory of felony child endangerment relied on in the trial court, and as the trial court instructed the jury, a person who has care or custody of a child, who, "under circumstances or conditions likely to produce great bodily harm or death . . . willfully causes or, as a result of criminal negligence, permits the child to be placed in a situation that endangers the child's person or health" is guilty of felony child endangerment.

In addition to instructing the jury on the natural and probable consequences theory of criminal liability based on aiding and abetting in felony child endangerment, the trial court also instructed the jury, according to the prosecutor's special instruction, that the jury "need not unanimously agree, nor individually determine, whether a defendant is an aider and abettor or a direct perpetrator. [¶] The individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other."

These instructions, if correct statements of law, were incorrect as applied to the facts in this case and had the effect of allowing the jury to convict both defendants of murder without first deciding that either defendant committed that crime, and without agreeing that defendants aided and abetted each other in either committing felony child endangerment or in committing the act that caused Joey's death — the blow to the abdomen. The defect is demonstrated by a review of the pertinent evidence.

3. THE EVIDENCE The evidence showed more than one act of felony child endangerment — someone bit Joey, someone broke his leg, someone caused his severe bruises, someone broke his ribs, someone violently shook him and someone inflicted a severe blow to his abdomen that ultimately killed him. The pathologist testified that with the exception of the broken leg, most of Joey's injuries occurred very shortly before the infant died and most likely were inflicted at the same time as the fatal blow. From that testimony, a jury could infer that whoever shook Joey also inflicted the fatal injury.

There is no direct evidence to show who inflicted each of the above-noted injuries. Therefore, the validity of the prosecutor's theory depends on the sufficiency of the circumstantial evidence to show that defendants aided and abetted each other in committing felony child abuse of which Joey's murder was a natural and probable consequence. Absent such evidence, the prosecutor's theory, regardless of its questionable legal correctness, must fail.

"Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence." (CALJIC No. 2.00 (6th ed. 1996).)

With respect to the bite marks on Joey's foot and arm, the evidence shows that those marks appeared to match defendant Culuko's bite pattern. From that evidence, the jury reasonably could infer that Culuko bit Joey and thereby committed felony child endangerment. In order to hold defendant Garcia liable as an aider and abettor in Culuko's act of biting Joey the evidence had to show, as the trial court instructed the jury, that he aided, promoted, encouraged or instigated Culuko's conduct. There was no evidence, direct or circumstantial, presented at trial regarding Garcia's involvement in Culuko's infliction of the bites. Consequently, a jury could not find that he aided, promoted, encouraged or instigated Culuko's act because such a finding would not have been supported by any evidence. On this state of the evidence, it is as possible that defendant Culuko bit Joey without defendant Garcia's participation or knowledge.

Absent evidence that Garcia aided and abetted Culuko's act of biting Joey, the only other basis for holding Garcia liable for felony child endangerment as a result of Culuko's act was that Garcia negligently permitted that act of endangerment to occur. As previously discussed, there was no evidence showing that defendant Garcia knew Culuko intended to injure Joey by biting him and, therefore, the evidence does not prove Garcia's liability for permitting that conduct.²

Apart from statutory liability for felony child endangerment based on negligently permitting Joey's injuries to occur, there is no other basis for holding Garcia criminally responsible for Culuko's act of biting Joey. Thus, assuming there was evidence to support an inference that Garcia knew Culuko was injuring Joey and that he failed to protect the child from continued injury, because Garcia was not Joey's father, he had no duty to intervene apart from that imposed by the felony child endangerment statute.³ As the author of the majority opinion recently noted, before criminal liability may be predicated on a person's failure to act, the person first must be under a legal duty to take affirmative action. (People v. Laster (1997) 52 Cal.App.4th 1450, 1466-1467 [61 Cal.Rptr.2d 680], quoting People v. Heitzman (1994) 9 Cal.4th 189, 198 [37 Cal.Rptr.2d 236, 886 P.2d 1229].) No such duty existed here.

Applying the above analysis to Joey's remaining injuries, I must reach the same conclusion — there is insufficient evidence to show that Garcia aided and abetted any of Culuko's actions. More particularly, assuming without actually deciding that the fact Culuko bit Joey is sufficient circumstantial evidence to support an inference that she also inflicted the other injuries,⁴ there was no evidence to show that Garcia, with knowledge of Culuko's unlawful purpose and with the intent of committing, encouraging, or facilitating that purpose, aided and abetted Culuko in the commission of those acts. Thus, at best the evidence would support Culuko's conviction for the charged offenses on the theory that she was the actual perpetrator of those crimes.

The remaining question is whether there is sufficient circumstantial evidence to show that Garcia actually perpetrated the acts that caused Joey's other injuries and ultimately his death and that Culuko, in turn, aided and abetted Garcia's conduct. According to the evidence presented at trial, as recounted by the majority, witnesses saw Garcia spank Joey on the bottom, "flick" him with his finger, "swat" him in the head and on the chest and slap him, presumably in the face. This evidence supports an inference that Garcia, like Culuko, was capable of injuring Joey and therefore was also capable of inflicting the other injuries. Once again, assuming without actually deciding that such evidence is sufficient to support an inference that Garcia actually inflicted Joey's other injuries, there is no evidence that Culuko with knowledge of Garcia's purpose, and with the intent of committing, encouraging, or facilitating that purpose, aided and abetted Garcia in the commission of his acts of felony child endangerment. In short, this evidence might be sufficient to support Garcia's conviction on the charged offenses had the jury be instructed to actually and separately determine each defendant's liability.

In summary, the evidence is insufficient to show that each defendant aided and abetted each other in a continuing course of felony child abuse of which Joey's murder was a natural and probable consequence. Any contrary conclusion, given the total absence of evidence on this point, is purely speculation.

4. THE ERROR The above analysis reveals the defect in the majority's resolution of the issues in this case. The evidence was insufficient to establish that defendants aided and abetted each other, either actively or passively, in the individual acts of alleged felony child endangerment. Therefore, the evidence could not establish that they engaged in a joint course of conduct involving felony child endangerment. The evidence shows separate and distinct acts of felony child endangerment but no acts of aiding and abetting and thus no aider and abettor liability for murder under the natural and probable consequences theory. The failure of proof was not corrected or otherwise altered by describing the individual acts as a joint course of conduct. The defect, i.e., the absence of aiding and abetting evidence, persists despite the description. In short, if the acts were insufficient to establish guilt when considered individually they remain insufficient when considered collectively because, to put it bluntly, zero plus zero equals zero.

Had the trial court required the jury to unanimously agree on the specific act of felony child endangerment that constituted the basis for the natural and probable consequences theory of liability, the defect in the prosecutor's approach in this case would have been exposed early on. However, the trial court not only did not instruct on unanimity but, in fact, instructed the jury precisely the opposite in giving the prosecutor's special instruction on aiding and abetting.

That instruction, as previously noted, told the jury that they "need not unanimously agree, nor individually determine, whether a defendant is an aider and abettor or a direct perpetrator. [¶] The individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other."

The instruction is taken from People v. Santamaria (1994)8 Cal.4th 903 [35 Cal.Rptr.2d 624, 884 P.2d 81], in which the Supreme Court held on appeal from a murder conviction that an acquittal on a knife-use special allegation did not collaterally estop the prosecution from retrying the defendant for murder on the theory the defendant stabbed and killed the victim. In addressing the requirement under the collateral estoppel doctrine that the previously resolved issue and the current issue be identical, the Supreme Court noted the jury could have found the defendant guilty of murder as either an aider and abettor or the actual perpetrator. In the context of discussing that point, as well as discussing the defendant's assertion that the acquittal on the knife-use allegation necessarily meant the jury unanimously found the defendant guilty as an aider and abettor, the Supreme Court stated, "Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes as probably occurred here, the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other." (People v. Santamaria,supra, at p. 919.)

The majority notes that the instruction is a correct statement of law and, therefore, the jury properly was instructed on the legal principle. I am not as sanguine. Although the instruction is a correct statement of law, there is nothing inPeople v. Santamaria, or any of the cases cited by the majority, to suggest that a jury should be instructed on the above-quoted principle. Assuming, however, that the principle is one about which a jury should be instructed, the instruction was erroneous in this case. The principle embodied in the prosecutor's special instruction is derived from cases that address the question of whether a unanimity instruction is necessary when the evidence supports guilt on a single criminal charge under more than one theory of criminal liability. Thus, for example, in People v.Gonzales (1995) 31 Cal.App.4th 1248 [37 Cal.Rptr.2d 537], cited by the prosecutor in the trial court as authority for the above-quoted special instruction, the defendant was charged with first degree burglary. There was evidence that the defendant entered the burglarized residence and thus was the actual perpetrator of that crime and there also was evidence that the defendant aided and abetted his companion's entry into the residence. In rejecting the defendant's claim that such evidence required a unanimity instruction, the Sixth District held that it was not necessary for the jury to unanimously agree whether the defendant was an aider and abettor or the actual perpetrator of the burglary. (Id. at p. 1255.) In reaching this conclusion, the Gonzales court discussed various cases that have rejected the requirement of unanimity in this context, i.e., evidence showing the defendant could be guilty as an aider and abettor and also as the actual perpetrator. (People v. Gonzales, supra, 31 Cal.App.4th at pp. 1252-1255.)

The cases the Gonzales court relied on to support its conclusion all involved prosecutions for a single crime but on different theories of criminal liability. For example in People v. Beardslee (1991) 53 Cal.3d 68 [279 Cal.Rptr. 276, 806 P.2d 1311], the defendant was prosecuted for murder on the theory that he was an aider and abettor or the actual perpetrator. The facts were undisputed that the defendant kidnapped the victim and personally loaded the gun that was used to inflict the fatal wound. The only factual dispute was whether the defendant or his coparticipant pulled the trigger and thereby inflicted the wound that actually killed the victim. In rejecting the defendant's claim that the jury should have been instructed that they had to unanimously agree on whether the defendant was the actual killer or an aider and abettor, the Beardslee court first noted that the unanimity requirement "typically applies to acts that could have been charged as separate offenses. . . . A jury may convict a defendant of first degree murder, however, without making a unanimous choice of one or more of several theories proposed by the prosecution, e.g., that the murder was deliberate and premeditated or that it was committed in the course of a felony. `[I]t is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.' [Citations] Pursuant to the latter rule, it was held in People v.Forbes (1985) 175 Cal.App.3d 807, 816-817 [221 Cal.Rptr. 275], that a conviction of second degree murder did not require unanimous agreement by the jurors on whether the accused was the actual perpetrator or was an aider and abettor." (People v. Beardslee, supra, 53 Cal.3d at p. 92.) Unanimity is required, however, "if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. [Citation.]" (Id. at p. 93.)

This case involves multiple alleged acts of felony child endangerment about which the jury could disagree, as previously discussed, and the instruction was incorrect for that reason alone. More significantly, however, under the natural and probable consequences theory of liability relied on in this case, whether a defendant was an aider and abettor or the actual perpetrator was not merely a theory of liability. Instead, it was an element of the crime, specifically, murder based on the natural and probable consequences of aiding and abetting in felony child endangerment and therefore the jury had to determine in this case whether a defendant was one or the other. In other words, the special instruction arguably would have been appropriate if the prosecutor were only proving the target crime of felony child endangerment based only on a single instance of such conduct. However, in order to elevate defendants' guilt on the target offense to guilt for murder under the natural and probable consequences theory, the prosecutor had to prove not only that one person aided and abetted in an act of felony child endangerment but, also, that the other person committed second degree murder as the actual perpetrator. Therefore, the defendant's status as either an aider or abettor or the actual perpetrator was an element of the offense about which the jury had to unanimously agree. By instructing the jury that they need not "unanimously agree, or individually determine, whether a defendant is an aider and abettor or a direct perpetrator," the trial court allowed the jury to find both defendants guilty of murder without requiring them to decide that either defendant actually committed that crime.

In fact, the prosecutor made that precise argument to the jury in closing. In explaining how the jury could find murder based on the evidence that both defendants engaged in felony child endangerment, the prosecutor stated, "They encouraged it, they facilitated it. [`]This is the way we treat Joey. I hit him, you hit him, we both neglect him. This is the way it is.['] [¶] Mr. Swanson [Culuko's attorney] told you during his opening that at the end of this case you would not be able to find his client guilty because I would not be able to prove to you that she inflicted the fatal blow. [¶] An instruction the Court will giveyou, [`]those who aid and abet a crime and those who directlyperpetrate the crime are principals and equally guilty of thecommission of the crime. You need not unanimously agree norindividually determine whether a defendant is an aider and abetter[sic] or the direct perpetrator. [¶] The jurors themselves neednot choose among the theories so long as each are [sic] convincedof guilt. [¶] There may be a reasonable doubt that the defendantwas the direct perpetrator and a similar doubt that he was theaider and abetter [sic], but no such doubt that he was one or theother.['] And isn't that what you have here. As I said before,some of you may believe Defendant Culuko did this crime, committedthis murder. Some of you may think that Defendant Garcia did, andsome of you, quite frankly may not know, but you cannot have anydoubt that they each aided and abetted in the endangerment of thisbaby and that the natural and probable consequences of theirconduct resulted in this baby's death. [Emphasis added.]"⁵

The effect of the trial court's erroneous jury instructions in this case, as evidenced by the prosecutor's closing argument, was that it enabled the jury to convict both defendants of all the charged offenses without deciding that either of them committed those crimes and, in fact without having to agree on any fact pertinent to those convictions. The impact of this error was that it enabled the jury to convict defendants without requiring the prosecutor to prove their guilt beyond a reasonable doubt.⁶ For this reason, I would reverse defendants' convictions on all counts and remand the matter to the trial court for new trials as to both defendants.

Appellants' petitions for review by the Supreme Court were denied May 24, 2000.

¹ The information alleged defendants committed felony child endangerment from on or about January 15, 1996, through and including January 26, 1996.

² At oral argument, the Attorney General and my colleagues in the majority all asserted that each defendant "must have known" what the other was doing. That assertion epitomizes the essential defect in this case — the substitution of "they must have known" for the requirement of proof beyond a reasonable doubt. Speculation is not a substitute for proof.

³ I agree with the majority's rejection of Garcia's separate claim that, as a matter of law, he could not be guilty of felony child endangerment because he did not have care or custody of Joey as required by the statute.

⁴ The only evidence that supports a finding that Culuko inflicted Joey's other injuries is the fact that she inflicted one injury — the bite. That fact supports an inference that Culuko was capable of injuring the child and thus could have inflicted the other injuries. Since the jury in this case was not called upon to assess the individual liability of each defendant, I will not determine whether such evidence is sufficient to prove, beyond a reasonable doubt, that Culuko in fact broke Joey's leg, broke his ribs, shook him or hit him in the abdomen with sufficient force to rupture abdominal arteries. In my view, that determination is one that a properly instructed jury should make and is why the convictions in this case cannot stand.

⁵ Apart from the obvious error in advising the jury that they did not have to decide who committed what act, or even agree on what happened, the prosecutor also incorrectly told the jury that all they had to decide in order to find both defendants guilty of murder was that Joey's death was the natural and probable consequence of the target offense. Correctly stated, what the jury had to find in order to convict both defendants of murder was that one defendant killed Joey and in doing so acted with express or implied malice such that the killing constitutedmurder and that the murder was the natural and probable consequence of the target crime in which the other defendant aided and abetted.

⁶ The record reveals that the jury relied on the aiding and abetting theory in reaching its verdicts as evidenced by a note they sent during their deliberations asking the judge to clarify which counts that theory applied to. The judge responded that it applied to all counts. The jury rendered its verdicts almost immediately after receiving the judge's answer to their question and after only one full day of deliberations.